Thursday, June 01, 2006

Yet More on the Constitutional Crisis

From a reader of Jerry Pournelle's site:
Subject: Legislative Immunity Explicit in Article I

Dr Pournelle,

Does not Article I, Sections 2 and 3 of the Constitution make the principle of Legislative Immunity explicit? The last line of Section 2 says; "The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment".

Section 3 says; "The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."

Article I makes it clear that it is Congress that has jurisdiction over elected officials, whether it be the President or one of its own members. Note in particular that it says a party convicted under impeachment proceedings is then liable to indictment and trial, but only after convicted in impeachment proceedings and removed from office (the sole allowable punishment).

Does this not make it clear that The Executive and Judicial Branches have no business stepping in until Congress has concluded its impeachment proceedings? Does this not make the principle of Legislative Immunity explicit in our Constitution? Executive immunity as well? After all, the executive branch (FBI) cannot execute a search without a warrant issued by the courts and Article I does state that the Senate shall have the "sole power to try all impeachments", which to me means that no court may issue a warrant for such a search.

I am no Constitutional scholar but this whole thing has prompted me to dust off a copy and re-read it. Am I missing something? Thanks very much.

Matt Kirchner
Kirkuk, Iraq

and Jerry's response:
That was the principle I was taught. But that was a long time ago, and the Constitution is a Living Document, and Mr. Jefferson is obviously a cheap crook and a Felon, so we may dispense with all this needless moomeraw and get on with searching his office and jailing him.

Living Documents change to suit the times, and the times they are a'changing.



At 4:51 PM, Blogger KipEsquire said...

Read those clauses again, very carefully.

They clearly do not grant legislative immunity; completely the opposite -- they make it clear that impeachment is NOT a substitute, or a prerequisite, for ordinary criminal convictions.

In other words, impeachment is impeachment and criminal conviction is criminal conviction and the two are in no way connected.

With all due respect to anyone's high school civics teachers...

At 1:23 AM, Blogger Justa Drifter said...

Impeachment precedes criminal conviction, if the matter leading to the impeachment is deemed a criminal matter worth pursuing. But only after impeachment and removal from office. That's how I understood it, and it seems I am not alone.


As I said, we'll see where this leads. There are historical precidents that don't look too promising. The Framers discussed them in Federalist 51.

Personally, while I find the discussion interesting at an academic level, I don't plan on being around long enough for it to matter. I figure I have about a dozen years left at the outside. That should be just about enough time to hit all the places I want to see. With luck, my heart will give out mid-orgasm in an Amsterdam brothel.


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