Moreover, Georgia law makes it a felony to conspire to commit election fraud, and the crime is complete "when the conspiracy or agreement is effected and an overt act in furtherance thereof has been committed, regardless of whether the violation of this chapter is consummated." In other words, the conspiracy does not have to succeed to be criminal. For example, Georgia law prohibits "criminal solicitation to commit election fraud" when a person "solicits, requests, commands, importunes or otherwise attempts to cause the other person to engage" in conduct that would be a felony under Georgia election law. Georgia criminal law, by contrast, is both clear and quite obviously relevant to Trump's conduct. It rightly said that although he is accused of making hush money payments, the legal theory that it could support a felony charge "has largely gone untested" and "would therefore make for a risky legal case against any defendant." If that's the case, then don't file the charge. Thus I was concerned when I read the Times' report on the Manhattan grand jury proceedings. Expanding the reach of laws beyond their plain text violates this principle and undermines trust in law enforcement.Īpplying the rule of lenity to Trump - as it should be applied to every citizen - means that he should be prosecuted only when the evidence indicates that he has clearly violated laws with plain and clear meaning, either on their face or as further defined by controlling precedent. As a matter of justice, should our nation be prosecuting citizens criminally under novel legal theories? The law should give fair notice of its scope, and it should be clear enough to permit us to conform our conduct to the relevant legal standards. The rule of lenity is both just and practical. It's a principle of statutory construction that states "when a law is unclear or ambiguous, the court should apply it in the way that is most favorable to the defendant." Another way of stating the rule is that the government shouldn't stretch or extend the law to criminalize misconduct. That principle brings me to the second factor to consider: the rule of lenity. So yes, former presidents should be subject to prosecution. The Supreme Court has held that presidents are subject to legal process, even when they occupy the Oval Office. It's the long-standing position of the Department of Justice that indicting a sitting president would "impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions." But Trump, of course, is no longer president.) The United States has prosecuted a vice president, governors, members of Congress and federal judges. (The arguable exception is the serving president. America's republican form of government does not create or permit a special class of citizens who are immune from legal accountability. In short, the guiding prosecuting principle should rest in the old maxim "Let justice be done, though the heavens fall." They should not, however, consider politics or the potential of mob violence. If prosecution decisions are imminent, what principles should guide the prosecutors? What factors should they consider when deciding whether to charge a former president? When weighing the facts and the law, they should remember the rule of law and apply the rule of lenity. 6 and the election interference efforts before Jan. Pence is a direct witness to key events surrounding at least two of those subjects: Jan. 6, 2021, and with the "lawful transfer of power" after the election. The special counsel said it is investigating Trump's mishandling of classified information and "efforts to interfere" with the certification of the 2020 presidential election on Jan. Third, as The New York Times reported last week, special counsel Jack Smith issued a subpoena to Mike Pence. Second, the Manhattan, New York, district attorney's office is reportedly presenting evidence to a grand jury about the accusation that Trump paid hush money to porn actress Stormy Daniels before the 2016 election. Key parts of the grand jury report will be released Thursday. The Fulton County district attorney, Fani Willis, has indicated that charging decisions are imminent. First, in Georgia, a special grand jury investigating his efforts to overturn the presidential election in the state has concluded its work. There are now three clear indicators that criminal probes of Donald Trump are rapidly reaching a conclusion.
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