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Friday, January 29, 2016

Two Presidential Candidates: Consistent Treatment?

Legal Issues Relating to Senator Ted Cruz’s Candidacy:

Is he a “natural born citizen”? 100s of articles in newspapers, law journals, and blogs.

Legal Issues Relating to (Former) Secretary Hillary Clintons Candidacy: 

#1. If after some or all state Democratic party primaries are held, candidate Hillary Clinton is prosecuted or convicted for violating 28 U.S.C. Section 2071, can delegates already pledged to her (especially those elected prior to the start of the prosecution or prior to the conviction) vote for some other candidate on the first ballot at the Democratic National Convention? 

t you think Vice President Biden already has on file a full-length memorandum on this subject? Maybe the MSM could obtain” a copy for the rest of us? See We are witnessing the end of the House of Clinton, The Hill (Jan. 25, 2016, 10:00 AM), 

#2. If candidate Clinton is chosen by the Democratic National Convention, and if prior to the general popular election she is prosecuted or convicted, can the Democratic National Committee overturn the Convention’s choice and replace candidate Clinton with another presidential candidate for the Democratic Party? As a practical matter, how does the answer to this question depend (if at all) on each state’s election and ballot law? 

t you think both the Democratic National Committee and Vice President Biden each already have on file a full-length memorandum on this subject? Maybe the MSM could obtain” copies for the rest of us?]

#3. If candidate Clinton were tried in federal court and convicted prior to or once holding the presidency (assuming she were elected), what is the effect of statutory disqualification under 28 U.S.C. Section 2071? (One recent law review article on this subject: [mine] also here [Volokh Conspiracyme again, with (former) Attorney General Mukaseys contribution].) 

#4. If candidate Clinton is elected, and then impeached by the House, and tried, convicted, and disqualified by the Senate, what is the effect of Senate-imposed disqualification? Does it matter if the Senate imposes sentence (including disqualification) prior to the start of her term (should she be elected), or once in office (again, should she be elected)? [I wrote on this legal issue in 2014, long before the current Clinton imbroglio.] Would you be surprised if the answer depended on the Constitution’s usage in regard to office and officer? [my prior New Reform Club post on office and officer]

#5. If candidate Clinton is elected in the general popular election, and subsequently prosecuted or convicted before the electors formally meet and vote, are her electors bound to vote for her as pledged? How does the answer to this question depend (if at all) on each state’s election law? 

#6. If candidate Clinton is elected and takes office, could she (or her subordinates) control any extant and still ongoing investigation, prosecution, or appeal?

#7. If candidate Clinton is elected and takes office, can she pardon herself in regard to any former or ongoing prosecution, conviction, or appeal?

You will find some academic commentary (and even some judicial guidance) in regard to some of these issues, particularly numbers 3, 4, 5, 6, and 7. (See below my signature line for examples.) But there is little or no recent public discussion in our newspapers and law journals of these issues with specific application to the concrete factual allegations against candidate Hillary Clinton. See [Allegations]. There isn’t even much discussion on blogs! Why the silence—from the left and the right—from people who are happy enough to explore legal issues involving Ted Cruz’s candidacy? 

Liberal bias might play a part, but it cannot explain the whole of it. 

Right-of-center media, legal, and cultural institutions exist; they could take up some of the slack here. But will they? Will you? Liberal bias is an excuse for doing nothing; it allows far too many people and far too many institutions off the hook, thereby squandering time and opportunity.    

There are many fora (including several widely read individual, group, and journal-run blogs) whose mission, if not primary mission, includes discussion of time-sensitive legal issues of public interest. Should not the public be informed about these Clinton-related possibilities and risks well before votes are cast? Why the silence among journalists, academic commentators (with expertise in election law, constitutional law, and statutory interpretation), and bloggers who usually very much like to write on issues of public moment? Would not this make a suitable—if not outstanding—journal symposium issue: The Hillary Clinton Candidacy: The Legal Issues”? Any takers? 

Given the silence, you would almost think “natural born citizen” were the only legal issue out there. Odd isn’t it? 


PS: If you, your organization, or your journal decides to set up the suggested law-of-the-Clinton-candidacy symposium, please send me notice of the event (or an invitation to participate!). I am happy to suggest other participants. Such a symposium need not be conducted in person. It could be conducted on short notice on Skype and posted on Youtube, or it could be merely a collection of papers preliminarily posted on SSRN, and subsequently published in a traditional print journal (or in an on-line supplement). But act soon: the election season is now upon us all. 

PPS: In regard to issue #3, some very fine and wide-ranging discussion can be found in: Josh Chafetz, Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions (2007)

In regard to issue #4, other informative discussion can be found in Quinnipiac Law Review: see [Cassady]; [Stern]; [Hoffer]; [Kalt]; [Melton]; and [Tillman]. My contribution to this collection of papers on the Disqualification Clause opposes the position put forward by Cassady and others. Melton argues that the clause applies to all elected federal positions: President, Vice President, Senators, and Representatives. I argue that the clause applies only to appointed federal positions, but not to any elected federal positions. By contrast, Cassady takes an intermediate approach. 

Cassady’s position—that the Disqualification Clause’s office ... under the United States language—reaches the presidency and vice presidency, but not Senate seats and House seats—flows seamlessly from the position of Professor Akhil Amar, who advised Cassady on this paper. 

See Cassady, n.* (“Professor Amar supervised this Article when it was only a class project. He spent countless office hours discussing and editing [!] the paper . . . .). Countless hours: how very admirable. An example to us all. Cf. Akhil Reed Amar, The Law of the Land: A Grand Tour of our Constitutional Republic 332 n.8 (2015) (that “[t]he presidency is an ‘office under the United States.’”).

In regard to issue #5, academic discussion is endless. My favorite is: Robert W. Bennett, Taming the Electoral College (2006).

In regard to issue #6, see, e.g., Michael Stokes Paulsen, Nixon Now: The Courts and the Presidency After Twenty-five Years, 83 Minnesota Law Review 1337 (1999). I cite Professor Paulsen frequently in my publications, including his new book: Michael Stokes Paulsen & Luke Paulsen, The Constitution: An Introduction (2015).  

In regard to issue #7, I recommend: [Kalt]; and Brian C. Kalt, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies (Yale University Press 2012). Another brilliant book. This book sets the standard for jargon-free informative legal writing accessible to the educated public. 

Here is a subsequent post expanding on the same topic: Seth Barrett Tillman, Litigating (former) Senator Hillary Clinton’s Legal Woes: A Response to Professor Rick Hasen (Election Law Blog) and Michael Stern (Point of Order blog), The New Reform Club(Feb. 2, 2016, 9:01 AM).

Here is my prior post: Seth Barrett Tillman, Professor Forrest McDonald (1927–2016): Scholar, Patriot, and Friend, The New Reform Club (Jan. 22, 2016, 5:03 AM). 

Twitter: ( @SethBTillman )

Welcome BalkinizationInstapunditChicago Boyz, and Milwaukee Federalists readers. Please wander about New Reform Club, where a lot is being written all the time. 


TMLutas said...

Here's an additional scenario for your consideration. Secretary Clinton wins the election in November, and is disqualified before the electoral college votes. She engages as a lobbyist to lobby her loyalists to vote for a different candidate, throwing the election to another candidate and is paid a princely sum. Is the contract legal or a sale of the office of the President?

Tom Van Dyke said...

Excellent, Seth.

Blogger TM Lutas said...
Here's an additional scenario for your consideration. Secretary Clinton wins the election in November, and is disqualified before the electoral college votes.

Not bad either. Maybe Kasich is our next president afterall. ;-)

Fiddlin Bill said...

As has been pointed out on Balkinization blog, this theoretical "issue" actually is relevant to any and all candidates for President, before and after they are elected. It is thus disingenuous to raise the issue in particular about Mrs. Clinton. Mr. Trump surely is a candidate for indictment at any time, given his shady deals with big-city building-trade unions, gambling, the professional wrestling industry, etc. On the other hand, Mr. Cruz was, in fact, born in Canada, and fits the legal definition (by precedent) of a naturalized American citizen, and there are also legal precedents barring naturalized citizens from the office of President.

Seth Barrett Tillman said...

Dear Bill,

I don't know of any presidential candidate in U.S. history that has been investigated for violating Section 2071, particularly by a DOJ controlled by a president of her own party. Now you might argue that a Section 2071 conviction is similar to what Trump (or the other candidates) might face, but that depends on what statute Trump (or the other candidates) would be prosecuted under, and also if that statute has a disqualification provision (like the one in Section 2071). Statutory disqualification provisions appear in a fair number of federal criminal statutes, but they are hardly universal across all federal criminal statutes. So the difficulty that Trump (or the other candidates) might face were they prosecuted might be very different from what candidate Clinton might face were she prosecuted.

These are all matters which (as far as I know) are not discussed in the current literature -- and that was the point of my post. They ought to be discussed. But, I guess, some gutsy politically correct people just like closing down other peoples' discussions, particularly by making anonymous posts, or by alleging bad faith on the part of others. Which takes me to my second point ... I think you should be much more cautious in regard to calling other people or their writing "disingenuous". I might be right, or I might be wrong -- but I certainly mean what I say, and I mean it in good faith for the benefit of the wider public. I publish under my own name, I allow comments, and I respond to them. If you cannot see all that, then the matter speaks for itself.

Good luck!


Anonymous said...

If President H.R. Clinton pardoned herself, would that preclude impeachment? I assume not. (Well, I hope not.)

Anonymous said...

I could see Obama using the arrest or conviction of Hilary as a Constitutional Crisis to suspend elections till another candidate is found so as not to disenfranchise their party.

Tucanae Services said...

As the line in an old movie once uttered -- "The best move is not to play". I think it applies here. Prevention by the voters is better than the cure.

Anonymous said...

The #1 rule in American politics: Democrat politicians get to play by different rules.

Once you understand that, the rest is just details. Why no discussion of the questions raised by Mr. Tillman? See rule #1. The reasons and the excuses are just details.

What makes you think the Obama DOJ will indict? If they did, what makes you think they wouldn't "throw" the prosecution? Or that a jury would convict? In other words, what makes you think the whole thing isn't moot?