Day: January 3, 2019

“Asked by Today’s Savannah Guthrie about the Department of Justice’s guidance that a sitting president cannot be indicted, Pelosi said that was not settled law.”

I have to call bullshit on that one, at least in terms of a public indictment and conviction of a sitting president. The justice department is correct in their policy, and the reason has nothing to do with the law or the Constitution. Here is why: an indictment and even a conviction does not remove a President from office. Only a Senate trial can do that.

So let’s assume the President commits murder in front of hundreds of witnesses, or is discovered to have raped someone before he took office. If he can be convicted of a crime, no matter how heinous, he is still the President and the Commander-in-Chief, and would be running the country from his jail cell. I’m pretty sure we don’t want America to be in that situation. I presume that is one reason why we have the impeachment process and the 25th amendment – to prevent just that from happening. Imagine Donald Trump in the slammer, but still controlling the mighty U.S. Military and the nuclear launch codes.

Instead of prison, I suppose he would be under (white) house arrest.

Does that mean that a President can commit any crime he wants, as long as the Senate supports him and he stays in office until the statute of limitations expires? No, I don’t think so. Pelosi may be right in a legal sense. If the President commits a crime, assuming the Senate will not remove him, and the statute of limitations will expire before he leaves office, there seems to be no reason why a court cannot issue a sealed indictment against him while he is President, with the indictment to be opened when he leaves office. I think the answer to that must be “yes, he can be indicted,” for practical reasons rather than on Constitutional grounds, because that is the only way he can be held accountable for his crime, and the first principle of justice is that nobody can be above the law.

There are probably no sealed federal indictments against Trump because Mueller’s team putatively intends to respect the “no indictment” policy of the justice department, but there could be sealed state indictments against him right now. We would not know about them.

Now our government is making it easier to discriminate?

To quote Mel Brooks: “Now what’ll that asshole think of next?”

To be fair, some of these rules do need to be clarified or modified. Case in point:

“In New York, a lawsuit alleges that a large apartment complex in Queens will not rent to anyone with a criminal record, and that this has the effect of discriminating against African American and Latino renters. The suit is pending, relying on disparate impact to make the case.”

In my opinion the principle of “disparate impact” needs to be overridden by the same BFQ rules that apply in employment law. For example, if I am hiring an actor to play Louis XIV as a teenager, I am allowed to discriminate against minorities and women and old people and post a casting call for young white males only. If I am hiring somebody who needs to be able to reach shelves eight feet in the air without assistance, I am allowed to specify that, even though it discriminates against women, who are shorter than men on average. That is called a “bona fide occupational qualification.” Bona fide qualifications should apply elsewhere as well. A landlord not wanting to rent to people who have defaulted on previous rental agreements, or who have broken into other people’s homes, or who have molested children, seems like a bona fide qualification to me, even if it would disproportionately affect minorities. (Just hypothetically. I have no idea whether it would affect any group more than others.)

However, BFQs should have to be defended in court if challenged, to prevent landlords, employers and others from establishing bogus qualifications for the sole or primary purpose of discrimination.