[Kerry Malone]

Hey Everyone,

I have a case study for you guys to think about and discuss.

Rules:
1. From the outset, this is a Theoretical exercise only. As such, I am not using real names. It is just a discussion. At no point will we discuss the actual Presidential Election or any of the candidates.
2. Anyone who incites hatred or specific political views beyond the remit of the case study's theoretical nature, will have their post removed.
3. This is a bit of fun, to make you think "What if...", as its been a great mental exercise for me. If I sense this is becoming something other than fun, I will take this thread down.

Case Study #1 - The Presidential Election

Early in the outset of the Presidential Primaries, the candidates, A and B, have been smearing each other quite a fair bit. During the smear campaign, Candidate B has insinuated illegal activities performed by Candidate A whilst that person held a high government office and in the years following on from their resignation from that position. Whilst considered "mud slinging" for the most part, this accusation sparks a small investigation by the US Federal authorities, if only just to cover their own back to say that nothing like this actually happened.

Fast forward to November of that year, and the Presidential Election has just finished. The votes have been counted and after the usual back and forth over the legitimacy of certain states results, a winner is declared - Candidate A. They have one the Electorial Collage vote by approximately 34 points ahead of their rival, making them the clear and undisputed leader. Candidate B gracefully capitulates to Candidate A, and the result is a national phenomenon.

It is now one month later, and we are now into transition, with the President-Elect starting to set up their offices and getting ready to take the oath of office in January. Suddenly, the US Federal Prosecutor announces that they have sufficient evidence to indite Candidate A for several Federal felonies. This now means that Candidate A is considered a suspect on suspected criminal activity, and that they must now stand trial for those offences.

This now causes a Constitutional crisis, as there is no clear guidance on what might happen as a sitting President cannot stand trial. There will be questions as to whether they are even legally allowed to take the Oath of Office in January. There's even more ambiguity as should the President-Elect not be able to take the oath, it is unsure that the Vice President-Elect could do it either, as they're not legally the Vice President yet. So, we move down to the Speaker of the House - and we hit another problem - the Office of the President isn't actually vacant, there is still the outgoing President holding office, and will remain in office until the "elected" new President takes the oath at 12:00 on January 13th.

So, assuming for the moment that the President-Elect is forced to stand trial prior to taking the oath, and they are prohibited from taking same-said oath, as the Chief Justice cannot swear into office someone knowingly suspected of committing a crime - we now face a terrible dilemma. Which could involve the current President, who has just completed two terms in office, so is now out of their legal term under the 25th Amendment, having to continue to hold the office.

The President can do one of two things in this situation - they could declare Martial Law, which would suspend all elections pending the restoration of civil obedience, but this is a very dangerous move on the President's part, and could be seen very negatively. The alternative is that the President passes an Executive Order keeping them in office "following the outcome of the trial of the President-Elect." Which could be a very long and drawn out process, and if found guilty and jailed, leaving an unelected President in the Oval Office.

There is no Constitutional guidelines or Statuary Law governing this outcome, and no precedence exists for this turn of events.

----

What do you think could/would/should happen?

[AgentZeus]

Hmm.... interesting!

From my understanding (I'm not american btw!) you would have to rule the President-Elect/VP-Elect ineligible to take office until the matter is resolved.

As you pointed out the outgoing President cannot - even under martial law - remain in power beyond his term limit. (This harks back to when Governors tried to stay in office by any means)

So who is next? What happens at the term limit? The outgoing VP takes over. Why? They are next in line - before the speaker etc. There are no term limits for VP's. There is no reason why they couldn't stay in office until it's resolved. Should you wish to enforce a limit they could be promoted to Acting President for the term of the incident.

And although never tested in law - and some say it might be unconstitutional - a previous President could become a VP and help navigate the crisis.

Just my $0.02 :p

[Stormy]

1. The president cannot pass an "executive order" extending his term. In fact, no one has the authority to extend his term. Period. That part of the case study is moot and should not be considered.
2. Martial Law is also out of the question since you did not stipulate any widespread civil unrest in the case study. That part of the case study must also be disregarded.
2. The constitution clearly states the Vice President (and I would assume the presumptive vice president) would take over should the president not be able to fulfill his duties. I imagine this would be extended to the presumptive president and vice president, therefore vice president A would be sworn in until such a time as president A is acquitted. Should president A be found guilty, acting president A would become president and a new vice president would be appointed.
3. Should it be ruled the presumptive vice president cannot take office, the Speaker of the House is third in line of succession, so he would become president until such a time as the presumptive president were able to take office. If the presumptive president were found guilty, the speaker of the house would become president and a vice president would then be named.

[Chrome]

If the VP-Elect isn't involved in such trial, he/she would be sworn in as Acting president for the 4 year term - and of course appoint a new VP.

Congress can jump in and say yay or nay to the VP-Elect taking over and appoint someone else. Current Speaker of the House, President pro temp......and the list goes on for "next in line".

Presidential Succession Act is what you want to look at for this. "If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President."

The big one there for this case study is Failure To Qualify - that means not being able to take the oath.

[Kains]

Between Chrome and Stormy it's covered. It would be a political nightmare, since there are plenty that would see it as an 'opportunity' for their interpretation of 'succession', but for the most part the chain is pretty self explanatory.

Does make for an interesting 'what if' scenario though, since I'm sure there are a couple of lawyers that could make a case for interpreting things...

[Noram]

This now causes a Constitutional crisis, as there is no clear guidance on what might happen as a sitting President cannot stand trial. There will be questions as to whether they are even legally allowed to take the Oath of Office in January.

Legally, there is no question. The Constitution lays down 3 and only 3 requirements for a person to assume the Presidency.

No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.

Any person meeting those requirements and who received a majority of votes in the Electoral College would become President upon taking the Oath, regardless of any other circumstances.

I imagine this would be extended to the presumptive president and vice president, therefore vice president A would be sworn in until such a time as president A is acquitted. Should president A be found guilty, acting president A would become president and a new vice president would be appointed.

It is. The 20th Amendment states that:

the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

So, even if a President-elect were indicted she wouldn't be legally barred from becoming President, and even if they were their Vice President-elect would assume the office in their place until the next election, and even if they couldn't the line of succession continues downward quite a few places.

It's not nearly as messy as you might think.

[Kerry Malone]

This topic came up at work, of all places, whilst on the phone to one of my users. Whilst waiting for a machine to eventually finish rebooting - since she was complaining about slow performance - we ended up doing back-and-forth on "what if" situations in the Presidential Election. This one came up, and we couldn't actually agree on it - so I thought I'd throw this out there as something to chew on.

It should go VP > Speaker > Senate Pro Tem > SecState > Etc

[Three of Seven]

Battlestar Galactic showed how far down the line of succession presidency went.

[Delwyn]

Noram has it pretty well nailed. I'll add a few additional caveats...

If we assume that the President-elect (now under indictment for the supposed crime) doesn't voluntarily stand down, then under the standard principle of Presumption of Innocence, the President-elect could be inaugurated on schedule (presumably, the Supreme Court could step in and levy an injunction on the procedings, but there is no precedence for such a maneuver and it's unclear how they may act in such circumstances.)

If, following the Inauguration, the DoJ presents sufficient evidence to bring the President to trial, then they would refer the matter to the House of Representatives who then have the responsibility to craft Articles of Impeachment on the President. Should the resolution pass the House, then the matter would be referred to the Senate who as a body would then try the President. Then, if the Senate, following their trial, votes to remove the President from office (and this is all they are Constitutionally allowed to do), then the President would be removed via a successful Impeachment proceeding and the Vice President would be sworn in as the President (per the 20th Amendment as mentioned above.)

Now, the President (or rather, the former President)...no longer being President...would be brought to trial by the DoJ and the regular legal system would undergo it's regular procedures to exact justice.

[Delwyn]

Now....all that being said....

If the Supreme Court does step in and stop the Inauguration, then we're definitely in murkier waters. As mentioned before, I'd imagine that the Vice President-elect would then take the oath of office, becoming the President until such time as either the person under indictlment (the original President-elect) is either acquitted or convicted. Taking office if the former, and going to jail if the latter. In the latter case, the VP-elect would remain President and would select a new Vice President, who would be accepted or rejected by the House of Representatives as required by the Constitution.


In any event...the Constitution (and it's amendments) cover the situation reasonably well, assuming we don't try to get too exotic with our interpretation. It would be, at it's heart, much more of a crisis of confidence than one of the Constitution. After all, we have well over 200 years of a history of a pretty orderly succession of power since the founding of the Republic...it might not be perfect, but I don't think you can argue with it's results (in the sense of an orderly and civil succession.)

[Sagison Brandt]

Would be interesting to see what happens should the seated president simply pardon the charged/indicted candidate...