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Editor's Note: In this weekly CrossExam column (Cross Interrogation), Elie Honig, CNN legal analyst and former federal and state prosecutor, provides insight on the latest developments in legal issues. The opinions expressed in this comment are those of the author.
(CNN) - Elie Honig will answer your questions on CNN.com about political trial as the investigation progresses.
Dave (Kansas): If Trump is subjected to political trial and dismissed, and Mike Pence becomes president, then how is the new president elected?
The twenty-fifth amendment, which was ratified in 1967, stipulates two aspects: first, (for this hypothesis, Pence) would select the new vice president and, secondly, that person must then be confirmed by a majority vote of the House of Representatives and the Senate.
A few years after its approval, the amendment was implemented twice. In 1973, Vice President Spiro Agnew resigned in the middle of a federal bribery investigation, President Richard Nixon selected Gerald Ford as the new vice president, and Ford was confirmed by the House of Representatives and the Senate. Later in 1974, Nixon resigned during the Watergate scandal. Ford became president and selected Nelson Rockefeller as vice president, who was confirmed by both houses of Congress.
Alison (Tennessee): What can the House of Representatives do to enforce their subpoenas if witnesses like Rudy Giuliani and Mike Pompeo refuse to abide by them?
The House of Representatives has these three traditional legal channels, all of them problematic.
First, theoretically, the House of Representatives has its own inherent power of compliance, but has become inactive after almost a century of disuse. The House of Representatives does not have a police force capable of making arrests - the sergeant in arms is primarily a security force - or functional prison facilities.
Second, the House of Representatives can refer a case for criminal prosecution. But that referral would go to Barr's Department of Justice, and the latter is unlikely to bring criminal charges given his pattern of protecting Trump and those around him.
Third, the House of Representatives can file a civil lawsuit in court. But this would take months to resolve, and the House of Representatives basically does not have the luxury of time to litigate.
But the House of Representatives is becoming creative ... and tough. Schiff has notified the recipients of citations that he will draw an "adverse inference" if they fail to comply. In other words, you will assume that your lack of response means that the testimony would have been detrimental to the accused. Second, the House of Representatives may impose an article of political judgment on obstruction of Congress; in fact, one of the drafts of the Articles of political judgment against Nixon was due to obstruction of Congress.
Carlos (Florida): Can Congress subject Trump to a political trial based solely on documents such as the informant's complaint or the special prosecutor Robert Mueller's report?
Yes. The first article of the Constitution gives the House of Representatives broadly the “exclusive power of political judgment,” but it says nothing at all about how the process should be carried out, nor what type or amount of evidence is necessary. For the political trial. This is different from federal criminal trials, which are governed by specific procedural regulations, rules of evidence and the requirement that the prosecutor prove the defendant's guilt beyond any reasonable doubt.
In fact, when the House of Representatives submitted President Bill Clinton to the political trial in 1998, he did so based solely on the written report of independent prosecutor Ken Starr and the material evidence. The House of Representatives did not call any eyewitnesses or present additional evidence.
That said, the House of Representatives will conduct its own investigation of the Ukrainian scandal over the next few weeks. Pelosi has announced that each of the six main committees - of the judiciary, intelligence, media and arbitration; of supervision, financial services and foreign relations - will investigate and then send recommendations to the Judiciary Commission, which in turn will decide if it recommends that the House of Representatives vote the articles of political judgment (and in that case, which ones).
Such research seems unnecessary here because many of the key questions of the Ukrainian scandal are still unanswered. Therefore, the investigation of the House of Representatives will be crucial in determining whether there is an adequate basis for political judgment.
Kenneth (Maryland): Article II section 2 of the Constitution provides that the president "shall have the power to grant Commutations and Pardons of Crimes against the United States, except in Cases of Political Trial." Now that the House Democrats have initiated proceedings against Trump, can you still issue pardons?
Yes. The president can issue pardons in criminal cases until he leaves office. In fact, many presidents have issued pardons in their final days and hours in office, probably because the pardons tend to be politically unpopular.
While the president has the constitutional power to pardon federal crimes - "crimes against the United States" - he cannot grant pardons by political trial. So, if the president or any other federal official is put on political trial by the House of Representatives and then sentenced by the Senate, there is nothing he (or anyone else) can do to reverse it. There is no way to appeal or reverse a political trial.
Vikki (Illinois): Could the House of Representatives conduct a formal investigation of political trial and then vote to censor the president, instead of subjecting him to political trial and sending him to the Senate - controlled by the Republicans - for the trial?
Constitutional scholar Laurence Tribe has proposed a similar procedure designed to create a formal record of Trump's conduct in the House of Representatives controlled by Democrats without sending the issue to the Senate controlled by Republicans for what many consider an inevitable partisan vote. of exoneration.
Under Tribe's proposal, the House of Representatives would conduct a political trial investigation, giving Trump the right to prepare a defense. The House of Representatives would then vote on a resolution that would declare the president accusable, which Tribe considers "much stronger than simple censorship," but would not advance the matter to the Senate for a formal vote on the dismissal of office.
Tribe's proposal has some merit. It would promote public understanding of Trump's behavior and create an important historical record. As Tribe writes, the House of Representatives would act “in a manner consistent with its primary obligation to establish that no president is above the law… without setting the dangerous precedent that a corrupt president can get his way without any limit, always and when he has an obedient Senate to back him up. ”
I see two arguments against Tribe's approach. First, it is an evasion of the process established by the Constitution: the House of Representatives votes to submit it to a political trial, then the Senate holds a trial and votes to exonerate it or to condemn it and remove it from office. Second, Tribe's approach does not meet expectations. Although the House of Representatives would do it only formally, the end result (at most) would be a very severe resolution that condemns the president, but without any penalty (such as dismissal of office).
Zhiliang (Chile): During the investigation of the political trial, would the House of Representatives investigate only the issue of Ukraine or other potential Trump crimes as well?
Article I of the Constitution gives the House of Representatives broadly “the exclusive power of political judgment” without imposing any limits of scope (as I indicated in the previous question) or of time. Therefore, the definition of the scope of its investigation and, eventually, any article of political judgment depends entirely on the House of Representatives. While the main focus of this investigation will be on the Ukrainian scandal, House Democrats do not suffer from a shortage of issues to consider: the findings of Special Prosecutor Robert Mueller on Russian interference with the election and obstruction to justice; the emoluments and self-enrichment, and the obstruction to Congress, to name three.
For now, the president of the House of Representatives, Nancy Pelosi, is looking at the House of Representatives investigations from a broader point of view. He has announced that each of the six main committees of the Chamber - that of the Judiciary, Intelligence, Media and Arbitration, Supervision and International Affairs - will investigate and then send recommendations to the Judiciary Commission, which in turn will decide if it recommends that the full House of Representatives vote the articles of political judgment (and if so, which ones).
While Pelosi has ordered extensive investigations by the commissions, he also told Democrats in private that she ultimately intends to focus narrowly on the Ukrainian scandal for political trial articles. This is a skilful tactical step on the part of Pelosi: it keeps its options open, it keeps several House of Representatives commissions in its political board, it keeps the appearance of considering all the options. Even if she resists Pelosi's strategy and eventual articles of political judgment focus exclusively on Ukraine, she will play her strongest hand without diverting attention by including more complex and potentially distracting issues.
John (Illinois): How long does the process of political trial take?
Legally, there is no time limit for the political trial process. This is in contrast to the criminal justice process, which limits the amount of time that can pass between the offense and the accusation ("limitation period") and the time between the prosecution and the trial (rules of " trial without delay ”).
In a practical and political sense, however, Congress knows that time is moving forward. Current lawmakers will be in office until 2021, so any political trial process should and will no doubt conclude by that time (although the next legislators may continue any pending inquiry if they consider it appropriate). And, of course, a presidential election is approaching in November 2020.
As the election approaches, the processes of political judgment will become increasingly conflictive and politically tense. The leaders of the House of Representatives understand that they have to act quickly. Both Pelosi and the president of the Intelligence Commission of the House of Representatives, Adam Schiff, have pledged to act “expeditiously,” and the president of the Judiciary Commission, Jerry Nadler, has declared “the march to all speed."
The chronology of the Bill Clinton political trial provides useful guidance. The House of Representatives initiated the investigation of official political trial in October 1998 and submitted Clinton to the political trial in December 1998. The Senate then conducted the trial of Clinton, which resulted in his exoneration, in January and February 1999. It seems reasonable now that Congress repeats the fairly rapid pace of the Clinton case proceedings.
For now, Congress has an even tighter political calendar: in the Clinton case, it was just under two years before the next presidential election (in November 2000), while now less than a year is left for the next presidential election (in November 2020). Time will be essential for Democrats.
Stevens (Virginia): Should the political trial be based on a crime codified in the laws?
No. Congress can certainly - and perhaps should - initiate a political trial if the president has committed a crime. But even if Trump's behavior dodges the drops of the laws and does not fully comply with the definition of federal crime, the political trial is basically a solution to the abuse of constitutional power.
The Constitution prescribes political trial for "treason, bribery, or other high crimes and misdemeanors." But the term "high crimes and misdemeanors" is not defined anywhere in the Constitution or laws, and appears to have been taken from British parliamentary practice, which contemplates political trial for crimes or for conduct that exceeds the scope of the criminal law established.
Our own background supports the notion that a crime is not required for the political trial process. President Andrew Johnson was put on political trial by the House of Representatives (and then acquitted by the Senate) for firing the Secretary of War, which is certainly not a criminal act. Drafted articles of political trial against President Richard Nixon included the abuse of office and the misuse of public office, while one of the proposed articles of political trial against President Bill Clinton (who voted against unanimously the entire House of Representatives) related to the abuse of their position related to non-criminal conduct.
Sean (Wisconsin): Can the Senate majority leader, McConnell, refuse to conduct the Senate trial if the House of Representatives votes the Articles of Political Trial?
The Sen. Mitch McConnell has stated that if the House prosecutes Trump, he "has no choice" but to carry out the Senate trial. But it remains to be seen if that promise is maintained as the investigation continues, especially if party resentment continues to increase.
Some observers have theorized that McConnell could in fact decide not to carry out the trial. The Constitution broadly grants the Senate the "exclusive power to process all political trials" and, according to the argument, McConnell could interpret that broad power to include the power of not proceeding.
But the side effects of such a decision would be, legally and politically, enormous. Legally, I would expect Democrats to object to the decision not to carry out the trial as a violation of the Constitution. And politically, it would be a tremendously risky move for McConnell to give the impression that he is trying to short-circuit the Constitutional process and leave the Articles of Political Judgment essentially hung up as a series of uncontested accusations.
McConnell has, however, wide discretion about how a Senate trial would be conducted. The Constitution essentially specifies only two procedures in particular: that the president of the Supreme Court (in this case, John Roberts) must preside, and that two thirds of the votes are needed for sentencing and removal. Apart from that, it will be practically up to McConnell to complete the procedure spaces.
Larry (California): If the president is brought to political trial by the House and found guilty by the Senate, does this prevent him from running for office in the future? Could Trump be subjected to impeachment, removed from office and then run in 2020?
The Constitution establishes that a judgment of political judgment causes "the removal of office, and disqualification to maintain or enjoy any position of honor, trust or remuneration under the United States." Therefore, of course, the Constitution seems to stipulate that if a person is prosecuted by the House of Representatives, sentenced by the Senate and removed from office, they will also be disqualified to hold a position in the future.
But some legal scholars have argued that the Senate must vote separately on (1) the removal of office and (2) the disqualification to hold a future position. Reviewing historical precedents, the Senate at least twice voted to remove federal judges and then separately voted on whether to disqualify judges from accessing charges in the future. And while two thirds of the Senate votes are required for removal, the Senate has used the simple majority voting standard in previous cases of disqualification.
So, if the Senate voted to sentence and remove the president, he would probably vote separately on whether to prevent him from accessing another position in the future.
Steven (New Jersey): It is true that, if Congress brings a case of political trial to the Senate, and the Senate presents a "not guilty" verdict, then upon retiring, Trump could not be prosecuted except for Juged thing?
No, this is not so, although Pelosi once made that implication when he was supposed to tell Democrats in the House: "I don't want to see (Trump) prosecuted by political trial, I want to see him in prison."
In fact, political trial and criminal prosecution are two totally different processes, which serve different purposes. The political trial is a political process prescribed by the Constitution to remove the president or other federal officials from office, separate from criminal charges. A president can be charged by the House of Representatives and sentenced by the Senate, but never be criminally charged later.
On the contrary, a president can be brought to political trial by the House, acquitted (found not guilty) by the Senate, and then be charged criminally and formally when leaving office. In any case, the exception of res judicata would not impede the prosecution because the political trial is not a criminal process, and therefore does not qualify as a "first" trial, so to speak.
Translation of William Montes
Political judgment
