This week on All The President’s Lawyers, Ken and Josh take questions from listeners. Several of your questions were about impeachment. It’s a complicated topic and one without a lot of legal precedent and case law. You also asked what would happen if Trump was defeated in 2020, yet refused to give up the presidency.
Here are a selection of questions and answers (note: these questions and answers have been edited for length and clarity
If the Democrats decide to impeach Trump, will he be forced to be questioned under oath? - Tom
Ken: Whenever we’re talking about impeachment, you have to understand that it hasn’t happened very often and there’s, by definition, not a lot of case law covering it. But there’s no reason to believe that the president would be forced to answer questions against his will, forced to incriminate himself on what may be criminal matters, in impeachment any more than he would in any other context… Any lawyer would advise him to take the Fifth and refuse to answer questions, refuse to testify. Whether the president has the capacity to take that advice, of course is a completely different question.
If the House approves articles of impeachment, does (Senate Majority Leader) Mitch McConnell have the option not to hold a trial in the Senate? - Bob from Atlanta
Ken: That’s a great question and the answer is: we don’t know. He arguably has a constitutional duty to hold the trial based on the way the Constitution is written, but it’s not clear whether a court would enforce that duty… [or whether a] court would say it falls into the realm of political questions… [and] a court should not interfere in them. You could have a constitutional crisis where one house has voted to impeach, the other refuses to hold a vote, and a court could say, ‘sorry you have to work this out at the ballot box.’
We got several questions about prosecuting President Trump after he leaves office, and that begs the question: what’s the right way for presidential candidate to answer questions about whether they would prosecute President Trump if he is voted out of office?
Ken: There’s something of an unpleasant spectacle of presidential candidates talking about how they will prosecute a particular person if they take office. For all that everyone is enthusiastic in making sure that crime is deterred and that if President Trump did something wrong that he faces consequences for it, I don’t think it’s a good thing for candidates to be out there trying to win votes by talking about what individuals they’ll prosecute if elected. I would prefer to see the candidates say, ‘I’m not going to talk about what the Department of Justice would do with respect to any particular suspect if I were elected, that’s not appropriate, however, I would see that offenses like obstruction of justice and conspiracy to derail investigations are taken seriously and that no one is immunized from investigation just because of their rank.’ Something like that would be far more appropriate than the Democratic equivalent of “lock her up.”
And for good measure, Josh and Ken toyed around with one big hypothetical question: My question is: many people have said that Trump will not leave even if he loses the election, but obviously it's not up to him. So if he did challenge the election, what would it look like? If you just didn't leave who would have to go along with that and how would that play out if Trump just says “I'm not leaving.” - Larry from Los Angeles
Josh: I imagine a sad Donald Trump sitting around the West Wing in the hallway outside the Roosevelt Room just refusing to leave as the new administration sets up around him.
Ken: You’d need the executive branch to be purporting to follow him, the military and law enforcement and so on. It all comes off to me like a bad Tom Clancy novel or something.
Josh: Congress would have to weigh in to certify the results of the electoral college.
Ken: Or the president could go straight to court and start disputing the results of the election. You could see Trump doing a series of litigations over results in different states and trying similarly to drag things out. I imagine any legal machinations Trump might use to try to stay in office might not work.
If that happens, well, rest assured All The President’s Lawyers will be here to explain all the legal problems Donald Trump runs into, whether he wins or loses in 2020.