Term limits extensions https://www.cnn.com/2020/09/10/politics/michael-cohen-trump-cnntv/index.html What would need to happen in order to enable a US president to govern for a 3rd term?
The two-term limit is embeded in the Constitution at the Twenty-Second Amendment. A third term would therefore require a constitutional amendment to allow more than two terms. Under Article V, constitutional amendments can happen in one of two ways: The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof.
You are correct that the existence of a lawsuit -- on First Amendment or Fifth Amendment grounds -- is not a strong basis for believing that Acosta will have his pass reinstated. People file losing lawsuits all the time. But that doesn't really tell us anything about the merits of his case, which I discuss below. Temporary restraining order: The standard for TROs is well-established: This court may issue a temporary restraining order or a preliminary injunction only when the movant demonstrates that: there is a substantial likelihood plaintiff will succeed on the merits; plaintiff will be irreparably injured if an injunction is not granted; an injunction will not substantially injure the other party; and the public interest will be furthered by an injunction. Morgan Stanley DW Inc. v. Rothe, 150 F. Supp. 2d 67, 72 (D.D.C. 2001). I'd normally expect the court to be pretty speech-protective in a First Amendment TRO case, but because this is the White House, they'll probably give a fair amount of extra weight when figuring out how to balance everything here. I would not, however, expect either of the factors that you mentioned -- that this is a Fifth Amendment case and that few people have press passes -- to do much to change the court's analysis. I suspect it's going to come down to who is more credible about what happened and why. Fifth Amendment: The Constitution does not promise us much at all in terms of outcomes. What it does promise is that the government will go through reasonable procedures to arrive at those outcomes. As you seem to have identified, that's exactly what Sherrill was about. Sherrill does not say that everyone has the First Amendment right to a White House press pass; it says that that everyone has the Fifth Amendment right to due process when the White House decides whether to grant or deny a press pass -- especially because of the First Amendment interests implicated in those decisions. The basics ingredients of due process are notice and an opportunity to be heard by a neutral decision-maker, and that's all that Sherrill calls for: a publicly disclosed procedure by which the journalists can apply for credentials and appeal adverse decisions. Here, it's unclear whether the White House has provided Acosta with any notice or any opportunity to appeal his decision. If that's the case, they've almost certainly run afoul of Sherrill. But again, you are correct that this does not mean he gets his press pass back. If they find that the White House violated the Fifth Amendment as explained in Sherrill, the remedy will simply be to force it to go through the prescribed procedure. First Amendment: If it turns out that they use that procedure as a pretext to punish Acosta for protected speech, we would be out of Fifth Amendment territory and into First Amendment territory. If a court found that the White House had revoked his pass because he was from CNN, because they didn't like the questions he was asking, or because he didn't provide fawning coverage of the president, it is virtually certain that the White House would be forced to restore his credentials. But if they determine in a fair way that Acosta should have his pass revoked because he was violent, because he was infringing on other people's ability to do their job, or because he was otherwise violating established rules, a court would probably say that any of those was an acceptable justification. In that case, CNN would need a new White House correspondent.
Trump was an officer of the government, and Twitter wasn't. The First Amendment forbids the government and its agents from viewpoint discrimination, but private companies are not bound by it and can discriminate as much as they please. (There was a question as to whether such discrimination might affect whether the company enjoys a shield from liability under 47 USC 230, but even so they have the right to block and censor as they wish if they are willing to risk that liability.)
Double jeopardy in its usual sense wouldn't attach because impeachment is not a criminal proceeding, which is the only thing double jeopardy applies to (esoteric estoppel matters not withstanding). You might recall that OJ Simpson was tried and acquitted of murder in a criminal court, and then subsequently tried and found liable in a civil court for those murders. There was no double jeopardy protections of which he could avail himself. But the constitution says that the Senate shall have the sole power to try impeachments, so for the most part we can expect that whatever they say goes. So they can dismiss for any reason they desire, in principle. The impeachment of Senator Blount is one example: the House impeached him, and on the same day the Senate expelled him under their constitutional power to do so, and then dismissed the impeachment for lack of jurisdiction (arguing that Congress members cannot be impeached; the impeachment was otherwise still relevant after his expulsion because it could result in preventing him from gaining office again). The costs here are political: in your hypothetical situation with very strong evidence, if popular opinion turns too strongly in favor of conviction then refusal to do so may cost the Senators and their party in subsequent elections. Attempts to argue arcane technicalities might not save you at the ballot box. Under existing impeachment precedent (as well as Congressional rules precedents), the courts would be loathe to get involved by default. Though if the action was sufficiently egregious (not even superficially resembling what a judge might call a trial, say) maybe they would feel judicial intervention and action was warranted and justified. But that's purely speculative.
The president alone has power, under Article II, Section 2, Clause 1, to grant pardons for federal offenses. Many states have an analogous power for governors, to pardon state offenses. In some states, though (for example Minnesota), there is a board in charge of the process (made up, in Minnesota, of the Governor, Chief Justice and Attorney General). Likewise, in Canada, pardons are granted by a board. Although POTUS has the power, in terms of implementation it is a bit more complicated, since he doesn't sit around wondering "Who should I pardon": he has an Office of the Pardon Attorney who makes recommendations. However, there are other ways to get out of jail (besides doing the time), namely having the conviction overturned, being paroled, and credit for good behavior. Federal parole is no longer an option, but the other avenues are open, at least in principle.
Yes The rule against prosecuting a sitting President is not a law, it is a Justice Department opinion and policy. The justification for it is that dealing with a criminal case would be severely distracting to the President, and thus harmful to the nation. Besides, the opinion goes on, any serious issue can be dealt with by impeachment. That reasoning obviously does not apply to a former President. Article I, section 3, paragraph 7 of the US constitution says: Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. (emphasis added) This clearly contemplates the criminal prosecution of a former office holder, after such a person was removed by an impeachment. There is no exception for a President. Therefor a President can be criminally charged and prosecuted for actions during the presidency, provided that the evidence to establish probable cause is there, and that a Grand Jury indicts said former President. So far as I know there has never been a case where such a thing was done. President Ford's pardon of President Nixon stopped any Federal prosecution of him. I think there have been cases were former US Judges, after impeachment, were criminally prosecuted. But that is not quite the same thing -- no one claims that sitting judges are immune to criminal charges. To be clear this would not apply just to issues that a President had been impeached for. A former President is no different from anyone else in this respect. Any such person can be prosecuted if there is probable cause, and convicted if there is proof beyond a reasonable doubt of criminal violation of some law, even if the violation occurred while the president was in office.
Article II of the Constitution does say that "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". So it is true that a president or a federal judge could be impeached and removed from office, and it has happened to some extent 19 times – in 8 cases it went all the way to removal (as opposed to acquittal or resignation). However, this would not be a very effective way to avert a "crisis". Any judicial ruling is subject to appeal by a higher court, until you get to the Supreme Court. Moreover, impeaching a lower judge does not erase his or her rulings. So ultimately, a matter will be decided by SCOTUS. In anticipation of such a ruling, Congress might decide to get rid of some Supreme Court justice who they think might stand in the way. That was attempted with Samuel Chase, who was acquitted. Such a decision is not subject to judicial review (Nixon v. United States 506 U.S. 224). However, SCOTUS can also overturn that decision though that would be very unusual. It would also be very unusual for Congress to impeach a Supreme Court justice for having a position that they disagree with. At any rate, there is no such thing as a "deadlock" between branches of government. When the court rules, that is the end of the matter from a legal perspective. It is, in fact, entirely possible that a general will rule that the court or the president (or both) are wrong and will declare what the law now is, but that takes us out of the realm of legal discussions.
It would not prohibit Colorado from passing the law, but it could prohibit implementing the law. SCOTUS rulings (Powell v. McCormack, 395 U.S. 486; Term Limits, 514 U.S. 779) establish that neither Congress nor the States can require additional qualifications of federal candidates beyond those listed in the Constitution. The relevant question is whether a law imposes an additional &quot;qualification&quot; on a candidate for president. Every state imposes at least one requirement on a person seeking to be a candidate on the ballot in a state: they must somehow &quot;register&quot; as a candidate. So the Qualifications Clause is not interpreted to mean &quot;anybody can run for president as long as age and natural-born&quot;. The Anderson-Burdick doctrine allows certain kinds of requirements to be imposed on candidates, namely those that relate to a state's interest on properly managing elections. A no-felon law would clearly go way beyond the accepted state interest (regarding management of elections) reflected in Anderson-Burdick, and would be found to be as unconstitutional as requiring a candidate for president to have a law degree, or prohibiting a candidate from having a law degree.