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Over the past decade or so, there has been a lot of noise regarding the Executive branch doing extra-legal things.
Between the Bush-era Torture scandal, and the Obama-era drone strikes, it increasingly seems as though our leaders are not held accountable to the law.
Some have traced this trend of leaders being above the law to Ford's pardon of Nixon.
My question is:
What legal mechanisms exist to prevent our leaders from violating the law? and how effective are these mechanisms?
First, the President is a citizen of the United States, and just like any other citizen is bound by its laws. As such, the commission of a crime is punishable under the appropriate judicial jurisdiction, as would be the case for any other citizen.
With respect to extra-constitutional uses of powers of the office, our balance of powers gives recourse to the Legislative branch through the impeachment process. As defined in the Constitution:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
What constitutes "high Crimes and Misdemeanors" has some room for debate, but as Gerald Ford once said, it can be defined as:
whatever a majority of the House of Representatives considers it to be at a given moment in history.
Articles of Impeachment are drawn up by the House of Representatives and require just a simple majority to pass. At this point, the Senate must vote to convict the Impeached individual and remove them from office. This requires a two-thirds majority of the Senate.
Examples of activity leading to Articles of Impeachment have included illegal activity, abuses of power, or simply activities unbecoming of the office.
Effectiveness depends a great deal on the observer and the degree to which they feel extra-constitutional activity continues to occur. In the history of the Union only 19 federal officers have been Impeached (not necessarily convicted or removed from office), however, whether that is an indication that the vast majority of federal office holders abide by the Constitution or that Congress tends to overlook such cases is up for debate.
privileged from arrest when executing his duties. It seems that it would be perfectly legal, although a huge scandal, to arrest, try, and convict the President for any crime that an ordinary citizen would be convicted for. He would still be President in jail, though, until Congress removed him from office.
The law is not intended to actively prevent people from committing crimes but rather to provide a method of prosecution and punishment for those who do violate the law. This acts as a deterrent for those who would violate the law. But if the people responsible for investigating, and prosecuting violations lack the will or desire to enforce the law the deterrent factor is basically nonexistent.
It is possible that the officeholders could be prosecuted criminally. However the people who would do this ultimately report up to the president. This creates a conflict of interest. Not to mention the President has the ability to pardon himself while in office. Once out of office the specter of Soviet era purges of previous administration officials is often used as a deterrent for those who would pursue criminal charges post presidency. There was discussion of criminal charges against Nixon after he resigned but Gerald Ford pardoned him preempting the criminal investigation.
Keeping all of that in mind, the framers of the constitution were aware of the dangers or corruption in government. For that reason made sure that certain freedoms were protected. The freedom of press and speech to report on and speak out against illegal actions by our government. The requirement of due process to prevent the government from rounding up those who would speak out against them on dubious charges. And ultimately, the right to keep and bear arms. The idea being that if the government can not be reigned in through the law the people have a mechanism through which they can rise up and topple that government.
