Presidential duties in office Is a U.S. President a fiduciary in the same sense a trustee or bank officer is a fiduciary? Does a U.S. President have a duty to apply critical thinking to his public acts and statements? By critical thinking, I mean the objective analysis and evaluation of an issue in order to form a judgment. Assuming affirmative answers above, could a U.S. President who was acting in an obviously irrational way in exercising his discretion ( for example, by not using critical thinking) be held accountable under 28 U.S. Code § 1361 - action to compel an officer of the United States to perform his duty. If such a writ of mandamus were issued and ignored, what are the possible resolutions? As an example (contrived to fit comments) let's say the President gets furious about some occurrence of flag burning he sees. He then begins repeatedly proposing that flag burning be made a felony or speaking as if it were already a felony under the flag code. He does this despite the fact that SCOTUS has found it to be a protected activity. While many people wouldn't be injured by his flag-burning rants, but for a few that want to engage in that activity, the president's action might improperly discourage them from it, without causing physical or economic damage. It seems like the ones who want to burn flags might bring an action.
Is a U.S. President a fiduciary in the same sense a trustee or bank officer is a fiduciary? No. Does a U.S. President have a duty to apply critical thinking to his public acts and statements? No. could a U.S. President who was acting in an obviously irrational way in exercising his discretion ( for example, by not using critical thinking) be held accountable under 28 U.S. Code § 1361 - action to compel an officer of the United States to perform his duty. No. 28 U.S. Code § 1361 applies only in circumstances where the duty to act involves no critical thinking or discretion whatsoever.
Usually these words refer to whether something (e.g. a law or government action) is or is not in accordance with the Constitution, including its amendments, as currently interpreted by US courts including the Supreme Court. So in view of Chaplinsky, the Constitution (as interpreted) does not protect "fighting words", and therefore a law that forbids "fighting words" is constitutional. As phoog points out in the comments, the word can also be used to refer to whether something is in accordance with the Constitution, as the speaker thinks it ought to be interpreted. So somebody might say that a certain law or action is (un)constitutional, even if a court has not considered it, if their own personal interpretation of the Constitution is (or isn't) consistent with it. Or, if a court has struck it down (or upheld it) but the speaker thinks they erred in doing so.
united-states In the US Judges are generally not supposed to take public opinion into account, nor the views of executive officials, except as those are expressed in briefs or other documents submitted during a case. This is part of the &quot;Independence of the Judiciary&quot; or &quot;Judicial Independence&quot; Where a court has been too strongly influenced by short-term public opinion in a criminal case, this has been held to be a violation of Due Process, as was noted in Powell v. Alabama, 287 U.S. 45 (1932) although the main issue there was the right to Counsel (a lawyer). In the opinion it is said that: It is perfectly apparent that the proceedings, from beginning to end, took place in an atmosphere of tense, hostile and excited public sentiment. (287 U. S. 51) However guilty defendants, upon due inquiry, might prove to have been, they were, until convicted, presumed to be innocent. It was the duty of the court having their cases in charge to see that they were denied no necessary incident of a fair trial. (287 U. S. 53) In The Federalist #78 Hamilton wrote: ... from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security. The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
What exactly would a prosecutor charge? State? Federal? It depends on whether it is a state or federal prosecutor. It appears that the president has at least flirted with violating both federal and state law, in which case he may be charged by both the federal and state prosecutors, each one laying charges under the relevant body of law. Would Trump be vulnerable to Federal prosecution of the phone call after he leaves office? Yes, if the facts support such a prosecution. It's not clear to me that the conversation constituted an unambiguous violation of the federal statute, but I have no knowledge of any precedent that might inform such a determination.
No, he was not effective A good lawyer litigating a constitutional law case would know what the standards of review are for determining constitutionality (strict scrutiny, intermediate scrutiny, or rational basis review) and have an argument for which one applies. Giuliani appeared to be unfamiliar with these standards. Quoting from an exchange between Giuliani and Judge Brann: Brann: What standard of review should I apply, and why? What standard of review should I apply in this case — Giuliani: On a motion to dismiss? I mean I think the normal one, which is that you, you have to deem the factual allegations to be correct, and even if they are correct, you have to find that there’s no merit, no legal merit, no legal theory on which we can get relief. Brann: Well let me ask you then, are you arguing strict scrutiny should apply here? Giuliani: No, the normal scrutiny should apply. If we had alleged fraud, yes. But this is not a fraud case. Brann: …So if that’s the case, why don’t Secretary Boockvar’s and the counties satisfy the standard of review you’re talking about? If it’s not strict scrutiny, and it’s the standard of review you’re implying, why don’t their actions satisfy this? Giuliani: I’m sorry, I don’t really understand the question, your honor. Brann: Well this is how I would look at it. I would think that it’s a standard of review of strict scrutiny, potentially. You’re not sure that that’s the case. I’m not imposing my — Giuliani: Maybe I don’t understand what you mean by “strict” — Brann: Well, for strict scrutiny to apply, a fundamental right needs to be burdened, as I understand it. So how do the counties or Secretary Boockvar, on behalf of the commonwealth, burden the plaintiffs’ right to vote? How do they burden the right to vote? The judge is basically giving Giuliani the answer here: he's challenging government action, so strict scrutiny would work in his favor, as it imposes the highest burden on the government to justify its action. The judge is even saying that he thinks strict scrutiny may apply. Despite that, Giuliani appears to have no idea what the judge is referring to, and is simply describing the standard for a motion to dismiss. The government's lawyers were prepared for this question, as they should have been, and argued for rational-basis review, which favors the government. Had Giuliani argued competently, there could have been two sides to that argument instead of only one.
The relevant statute, 28 USC 455 simply states what shall be, and does not suggest that the law could be enforced by any particular means. There have been cases where there was a suggestion of a hint of impropriety at SCOTUS and yet things proceeded. In Laird v. Tatum, 408 U.S. 1 Rehnquist did not recuse himself despite being a White House lawyer and having expressed an opinion on the legality of certain arrests, and that was the end of that matter.
The key limiting factors are the language: and the conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. And, also, the context of the term "belief" in the statute in conjunction with religion which is defined in the same section, which suggests that in this context it is intended to be understood as the kind of belief that constitutes a core worldview for a person, even if it is secular (e.g. Confucianism or a Stoic philosophy of life), rather than isolated particular ideas about factual things. There is also considerable room for judicial interpretation over whether, for example "effect of" is limited to an "effect" reasonably derived from the "conduct" in question. Still, in general, the U.K., has higher standards mandating civility in dealings with others than the U.S., and there is lots of conduct barred by the Equality Act of 2010 which would not be barred under U.S. law, for example. The closest analog in U.S. law is really the tort of "outrageous conduct" also sometimes known as "intentional infliction of emotional distress."
A quick answer: your analogy isn't quite right. The Constitution gives the House "the sole power of impeachment." So unlike you, their work is never "going to court." No judge is ever going to look at the evidence they used and say, "You only used notes, not a final report. That isn't good enough, or admissible." A longer answer: impeachment is not a legal process. It is a political process. The only binding requirements are those found in the Constitution. These cover who can be impeached and tried, for what, how punished and by whom. All other matters of procedure are decided by each house. There are several sets of rules and precedents that cover impeachment. But if the House or Senate decides to ignore these rules and make up new rules, they can. After all, Article I of the Constitution gives each house "sole power" over impeachment and trial. It also gives each house the power to "determine the Rules of its Proceedings." You might ask, why, if impeachment is a political process, do so many people talk about it as if it was a legal process? The answer is simple: Both sides are busy trying to put their spin on what is going on in the House. If either side believes they will get more support by talking about impeachment in legal terms, that is how they will talk about it. But this spin should not hide the reality: impeachment is political. That impeachment is political does not mean that it should not be guided by the same values that guide legal processes. Of course, the hearings should be fair, the President should get due process, and so on. But because they are political, no court is going to step in and assure that they are fair. The only guarantee that the President will get a fair hearing and due process is also political. If enough Americans think he did not get treated fairly, or was denied due process, or what impeached unfairly, they can vote the Democrats out of office. Politics is the key to understanding much of what has gone on so far in the impeachment process. For instance, for a long time, Speaker Pelosi refused to hold a vote on whether to formally start impeachment proceedings. She offered a variety of explanations for this, but the truth was that she did not want to force Democrats from close districts to have to openly vote against the President. Similarly, Republicans, who wanted to force Democrats from close districts to vote against the President, argued that it was unfair, illegal or unconstitutional to have any hearings on impeachment without such a vote. Since there are more Democrats than Republicans in the House, Democrats got to decide when that vote was held. Of course, if the House does impeach, and the Senate has to try the President, since Republicans control the Senate, they will control the rules, etc.