Hypothetical POTUS divorce If the spouse of the President of the United States filed for divorce, would the President have any claim of immunity from any litigation that followed (e.g. the division of assets in the matrimonial pot, child custody, etc.), would all the proceedings be fully held in private, could the President be compelled to take the stand and what would happen if the President refused to do so?
If the spouse of the US president filed for divorce, would a) the President have any claim of immunity from any litigation that followed (e.g. the division of assets in the matrimonial pot, child custody etc.), The President could claim it, but the President wouldn't win. Notably, a number of state governors and mayors have divorced while in office, and other foreign heads of state have been divorced while in office. For example, a U.K. court recently handled the divorce of a UAE monarch (over his objections to jurisdiction on sovereign immunity grounds), applying the same common law principles of head of state and sovereign immunities that exist in U.S. law and concluded that it had the authority to move forward with the case. Also, any Presidential divorce would take place in state court, not in federal court. Federal courts do not have subject-matter jurisdiction over divorce and custody cases (under the &quot;domestic relations exception&quot; to federal jurisdiction), so the civil action could not be removed to federal court, unlike federal criminal cases involving the official duties of the President and unlike civil cases over which the federal courts have jurisdiction. b) would all the proceedings be fully held in private, This would be in the reasonable discretion of the judge. It would not be a matter of right, but it is quite plausible that a judge might close the proceedings, especially if minor children were involved. c) could the President themselves be compelled to take the stand and Yes. A party to a lawsuit may always be compelled to take the stand, at least if no other person can provide a full substitute for the party's testimony. In ordinary civil lawsuits against the President, a President is usually compelled to testify only if an underling involved in the same matter cannot provide equivalent testimony. In many civil cases naming the President in his official capacity, the President has no personal knowledge of the facts and so can't be compelled to testify. But that would rarely be true in a divorce case, and would never be true in a divorce case where custody was an issue. This said, a state divorce court judge would almost certainly be very deferential to the scheduling concerns of the President for that testimony, and might allow that testimony to be provided remotely via videoconference so as to minimize the interruption this would pose to affairs of state and to address the security concerns of the Secret Service (i.e. the President's official bodyguards). d) what would happen if the President refused to do so? The judge could hold the President in contempt of court, which is punishable by fines and/or incarceration. But a more likely outcome, tailored to minimize interference with government business, is that the Court would sanction a President who defied an order to testify by assuming as a matter of law that any testimony from the President would have been unfavorable to the President and make a conclusive adverse inference on the evidentiary issues about which the President was asked to testify against the President.
Privilege May Be Irrelevant In Your Case In a criminal case in the U.S., a criminal prosecution is moot and dismissed if the criminal defendant dies (or even if the criminal defendant is convicted and the case is still on appeal). (Pending divorce cases also abate upon the death of a spouse, but most other civil cases do not.) Caveat: Your Mileage May Vary Privilege law is established on a state by state basis and at the federal level based upon federal law, so it can vary. Confidential Communications v. The Testimonial Privilege There are really two privileges. The privilege for confidential communications between a husband and wife survives the marriage (although it does not impose a duty on a spouse not to disclose confidential communications outside court testimony) and may be asserted by either party to the communication. The testimonial privilege allows someone facing criminal charges or a civil claim in court to prevent a current spouse from testifying against them whether or not the current spouse wishes to testify. Exceptons To Spousal Privilege Both privileges generally exclude criminal and civil claims between the spouses and sometimes certain other crimes, and often also ongoing crimes and an intent to commit a future crime. In Colorado, the privilege extends to crimes allegedly committed against children, however, although this would not be true in all states. The detailed example of the Colorado statute on this point is set forth below. The 5th Amendment Alternative To The Testimonial Privilege Note that even when the testimonial privilege does not apply because a marriage has ended due to death, divorce or annulment, the former spouse may still be able to claim a 5th Amendment privilege out of concerns about prosecution, for example, for aiding and abetting, conspiracy, or accessory liability, if the witness is not given immunity (which is usually available only in criminal cases, not in civil cases brought by a private party who does not have authority to grant immunity). Spousal Immunity Contrasted With Spousal Privilege Spousal immunity is a very different concept from spousal privilege. Historically, you were immune from criminal liability for most crimes committed against your spouse (except murder), and had immunity from civil liability from all civil lawsuits brought by or on behalf of a spouse against the other spouse (e.g. breach of contract, personal injury, property disputes), except a suit for dissolution or annulment of a marriage or legal separation. If you have immunity from criminal or civil liability, testimony is irrelevant. You can't be found guilty period. The criminal liability immunities were lifted for all crimes other than rape long ago, and relatively recently for marital non-consent rape (there is still generally immunity from statutory rape or person in position of trust rape committed during the marriage). The civil liabilities were mostly eliminated many decades ago. The Example Of Colorado's Spousal Privilege Statute In Colorado, the spousal privilege statute reads as follows (later parts of the statute apply to other privileges): Colorado Revised Statutes § 13-90-107. Who may not testify without consent - definitions (1) There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person shall not be examined as a witness in the following cases: (a)(I) Except as otherwise provided in section 14-13-310(4), C.R.S., a husband shall not be examined for or against his wife without her consent nor a wife for or against her husband without his consent; nor during the marriage or afterward shall either be examined without the consent of the other as to any communications made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other, a criminal action or proceeding for a crime committed by one against the other, or a criminal action or proceeding against one or both spouses when the alleged offense occurred prior to the date of the parties' marriage. However, this exception shall not attach if the otherwise privileged information is communicated after the marriage. (II) The privilege described in this paragraph (a) does not apply to class 1, 2, or 3 felonies as described in section 18-1.3-401(1) (a) (IV) and (1) (a) (V), C.R.S., or to level 1 or 2 drug felonies as described in section 18-1.3-401.5(2) (a), C.R.S. In this instance, during the marriage or afterward, a husband shall not be examined for or against his wife as to any communications intended to be made in confidence and made by one to the other during the marriage without his consent, and a wife shall not be examined for or against her husband as to any communications intended to be made in confidence and made by one to the other without her consent. (III) Communications between a husband and wife are not privileged pursuant to this paragraph (a) if such communications are made for the purpose of aiding the commission of a future crime or of a present continuing crime. (IV) The burden of proving the existence of a marriage for the purposes of this paragraph (a) shall be on the party asserting the claim. (V) Notice of the assertion of the marital privilege shall be given as soon as practicable but not less than ten days prior to assertion at any hearing. (a.5)(I) Except as otherwise provided in section 14-13-310(5), C.R.S., a partner in a civil union shall not be examined for or against the other partner in the civil union without the other partner's consent, nor during the civil union or afterward shall either be examined without the consent of the other as to any communications made by one to the other during the civil union; except that this exception does not apply to a civil action or proceeding by one against the other, a criminal action or proceeding for a crime committed by one against the other, or a criminal action or proceeding against one or both partners when the alleged offense occurred prior to the date of the parties' certification of the civil union. However, this exception shall not attach if the otherwise privileged information is communicated after the certification of the civil union. (II) The privilege described in this paragraph (a.5) does not apply to class 1, 2, or 3 felonies as described in section 18-1.3-401(1) (a) (IV) and (1) (a) (V), C.R.S., or to level 1 or 2 drug felonies as described in section 18-1.3-401.5(2) (a), C.R.S. In this instance, during the civil union or afterward, a partner in a civil union shall not be examined for or against the other partner in the civil union as to any communications intended to be made in confidence and made by one to the other during the civil union without the other partner's consent. (III) Communications between partners in a civil union are not privileged pursuant to this paragraph (a.5) if such communications are made for the purpose of aiding the commission of a future crime or of a present continuing crime. (IV) The burden of proving the existence of a civil union for the purposes of this paragraph (a.5) shall be on the party asserting the claim. (V) Notice of the assertion of the privilege described in this paragraph (a.5) shall be given as soon as practicable but not less than ten days prior to assertion at any hearing. (VI) For the purposes of this paragraph (a.5), "partner in a civil union" means a person who has entered into a civil union established in accordance with the requirements of article 15 of title 14, C.R.S. The reference to C.R.S. § 14-13-310(4) is to the section on child-custody hearings. How Serious Are The Crimes To Which Testimonial Privilege Does Not Apply In Colorado? Class 1, 2 or 3 felonies to which the confidential communication husband-wife privilege applies but not the testimonial husband-wife privilege apply in Colorado are quite serious offenses. Class 1 felonies in Colorado have a mandatory minimum sentence of life in prison without possibility of parole (or life with possibility of parole after 40 years if the offender is a minor). Class 1 felonies include first degree murder for which the death penalty is available in some cases and aggravated kidnapping where death is presumed because the victim has not be released alive. Class 2 felonies in Colorado are punishable by eight to thirty-six years in person (eight to twenty-four years if non-violent, sixteen to thirty-six if violent). Class 2 felonies would include second degree murder, kidnapping involving the rape or robbery of the victim, gang rape, rape committed with a deadly weapon, rape causing serious bodily injury, theft of more than $1,000,000, and attempted Class 1 felonies. Class 3 felonies are punishable by four to eighteen years in prison (four to twelve if non-violent, eight to eighteen years if violent). Class 3 felonies would include heat of passion murder, aggravated armed robbery, aggravated armed burglary, aggravated assault causing serious bodily injury or disfigurement or a permanent disability (and not in the heat of passion), human trafficking for involuntary servitude or sexual servitude (including keeping slaves), kidnapping for ransom or with a deadly weapon, forcible rape, rape committed by incapacitating someone with drugs, or rape caused by a credible threat of "imminent death, serious bodily injury, extreme pain, or kidnapping, to be inflicted on anyone", arson of a building, and theft of $100,000 or more but less than $1,000,000. A class 1 drug felony is punishable by eight to thirty-two years in prison. A class 2 drug felony is punishable by four to eight years in prison. These involve drug dealing of large amounts of drugs and/or drug dealing to children. Among the crimes to which the marital privilege would be still apply would be manslaughter, assault not causing serious bodily injury, theft of less than $100,000, unarmed burglary, unarmed robbery, kidnapping without a weapon and without asking for ransom, drug dealing in moderate amounts to adults, statutory rape, rape by a person in a position of trust, rape without consent but without use of physical force (e.g. by blackmail not involving physical violence threats), or arson of property other than a building. Of course, by charging a serious crime, one may cause the privilege to evaporate even if it is unlikely to result in a conviction for that crime.
A statement cannot be libel unless it actually identifies the plaintiff to defame him. The identification need not be by name, but it must be specific enough that the public would be able to determine who the statement referred to. You can read more about this concept at Prof. Eugene Volokh on Libel Law Therefore, if nobody other than the plaintiff or defendant learned about the connection before the filing of the case or the publication of discovered emails, the original work of fiction was not a libel. And by telling everyone that the connection existed, yes, the plaintiff was impliedly consenting to any further alleged libel and it would be a defense from liability for the plaintiff. Furthermore, there wouldn't be libel unless whatever the fictional character did was untrue (something the real plaintiff didn't do) and the public would think that whatever the character did was actually an assertion that the real plaintiff did it. I could write a satire about a President Brock O'Bama who is actually a lizardman in disguise, and that's my First Amendment right, not a slander of the President. Disclaimer: only describing the common law and majority rules. State laws may differ.
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.
The powers of the President are contained in Article II of the constitution; this is a fair summary. The power to make executive orders stems from Section 1 "The executive Power shall be vested in a President of the United States of America." When the Supreme Court considers the legality of an executive order (which only happens when someone brings a case that the court agrees to hear) they use Justice Jackson's Test from Youngstown Sheet &amp; Tube Co. v Sawyer (1952). The first amendment specifically forbids congress from making laws about these matters. Therefore the express will of congress (as the amendment required a 2/3 majority of Congress) is that there shall be no law about these matters. Since the President would be acting against the express will of Congress he would drop to the third limb of Jackson's test: When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.... Since, this is not a power that the President is given by the constitution it is likely that the Court would decide that he doesn't have such power.
The closest the Supreme Court has gotten to criminal liability for official acts seems to be Nixon v. Fitzgerald, 457 U.S. 731 (1982). There it addressed civil liability and held that the U.S. President &quot;is entitled to absolute immunity from damages liability predicated on his official acts.&quot; It's unclear how the Justices would decide criminal liability for official acts. (Though some might argue that non-precedential logic in Fitzgerald suggests the Court could extend immunity to the criminal context as well.) As to homicide, murder and manslaughter are federal crimes. See 18 U.S.C. §§ 1111–1112. The latter involves the commission &quot;of a lawful act which might produce death&quot; &quot;without due caution and circumspection.&quot;
Bob should certainly expect to be impeached by whichever side his testimony injures. Their attorney will confront him with the transcript of his previous testimony, and likely read it out loud for the jury to hear, and force him to acknowledge that he said something different before. This is pretty standard trial tactics. Bob would not be treated as formally admitting that he committed perjury, though I think it's fair to say that he has effectively made that admission. One side will treat him as having lied the first time; the other will treat him as lying now. It's possible that he will have some explanation for the discrepancy -- he was high, he has memory problems, he misunderstood the question -- but in your hypothetical, the explanation would have to be pretty amazing to justify such a complete reversal.
How exactly would the court determine this to be the cause of divorce? 99.99% of the time, this would be purely a &quot;he said she said&quot; situation, for how can someone prove refusal to engage? You can prove the opposite if there are children born to both parents, but how can one prove a negative? Or is the statement by the divorce initiator considered sufficient for the judge? Testimony under oath is evidence. Judges resolve &quot;he said she said&quot; situations every day on a routine basis with witness testimony alone by judging the credibility of each witness before them. See also an answer by @Jen about the subject of how things are proved in court in general. In the appropriate case, testimony under oath with no other corroborating evidence can even support a murder conviction as proof beyond a reasonable doubt. It can certainly suffice to prove marital fault in a civil lawsuit for a divorce. If the judge finds that witness testimony under oath between more than one witness is irreconcilably different, and each witness is equally credible, and that it is impossible to tell which person is telling the truth, then the person seeking relief from the court has failed to meet their burden of proof to obtain relief from the court. But, this is rare. Usually, when witnesses are both testifying under oath and disagree about what happened, the judge will find that one witness is more credible than the other. And, in truth, while people certainly do lie in open court under oath, and probably are more likely to lie in that situation than when speaking to someone not under oath outside of a courtroom, most of the time, people don't lie and the testimony of all of the witnesses are consistent with each other subject to limitations based upon what they could perceive from their perspective and the limitations of imperfect memories. This could come down to demeanor in court, hesitation in answering, &quot;tells&quot;, inconsistencies in their testimony, corroboration from other evidence and other witnesses (e.g. what someone said to a friend or wrote in a diary at the time), evidence that a witness has been convicted of a crime of deceit in the past, use of language that suggests coaching about their testimony, or common sense judgments about whose story seems more plausible under the circumstances of the parties in front of the judge.