Can senators meet in secret to discuss impeaching the president or do all such discussions need to be done in public? Can senators meet in secret to discuss impeaching the president or do all such discussions need to be done in public? I am wondering if meeting in secret to discuss impeaching the president can be considered treason. Is it the case or is the law much more flexible when it comes to what a senator or government official can do in private? Assume this is in the United States.
Anyone can meet with anyone to discuss impeaching POTUS – it happens all the time. Senators are not under any special First Amendment disability that prohibits them from talking on that topic. &quot;Meeting to discuss&quot; sometimes &quot;convening a session to officially debate an action&quot;. The House impeaches, the Senate convicts, so Senators do not debate or &quot;discuss&quot; a motion to impeach. There are (were) private discussions regarding procedure, and it is reasonable to assume, regarding the substance of the charges. The Senate is allowed to set its own rules, so if the Senate wants to conduct an impeachment behind closed doors, it can. Treason is if one, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason What you describe is politics, which is legal.
So can Congress itself just declare someone guilty of insurrection and bar them from standing in elections, without that being considered a bill of attainder? No. Even if it isn't a bill of attainder, the Congress can't do that. Or do they have to delegate the finding of fact (in re insurrection) to another body, e.g. to the judiciary? The issue would be presented when someone ran for public office and their qualifications were challenged, and would be resolved by state and local election officials, subject to judicial review. If that was not done, Congress could nonetheless refuse to recognize a state certification of someone's election on these grounds.
If you mean who decides what is good behavior, congress does. Congress would impeach a judge if he/she needed to be removed. With respect to federal judges, under Article I of the United States Constitution, the House of Representatives has the power to impeach, and the Senate the power to hold a trial to determine whether removal is appropriate. The House can impeach a judge with a simple majority vote. However, a judge may only be removed from office following a trial and a vote to convict by a two-thirds majority of the Senate. https://www.brennancenter.org/blog/impeachment-and-removal-judges-explainer
The policy of the Justice Department is that the President of the United States can not be indicted. https://www.reuters.com/article/us-usa-trump-russia-indictment-explainer/can-a-sitting-us-president-face-criminal-charges-idUSKCN1QF1D3 All federal prosecutors are part of the Justice Department and that means the guidelines for them say it is prohibited. There is not an actual law saying you can or can't indict the president. The idea is that impeachment is the right way to handle presidential wrongdoing, because the president shouldn't be distracted and he could be charged after leaving office or if he was impeached. The president can be investigated though and some have. https://www.abc.net.au/news/2018-03-13/trump-nixon-five-times-the-fbi-went-up-against-the-president/9539192
Defamation requires communication to a third-party I can say (or write) anything I want about a person directly to that person and, unless it is a threat, they have no recourse at all. I can call them a liar, a thief, a Nazi, or a goat fornicator. Of course, I have to be careful – calling them a “bastard” might be a slur on their mother communicated to a third-party (them) which would give her a right to sue although that would require a literal and largely archaic use of the term. That said, you do need to check with your lawyer if you can redact names in the face of a subpoena - complying with a legal obligations is a legitimate use of personal data under GDPR.
As an example, POTUS does not undertake the entire pardon process on his own, instead they are preliminarily processed by the Department of Justice, which makes a recommendation. Only POTUS can "grant" the pardon, and we lack substantive information on how deeply he gets involved (does he just sign documents based on staff recommendations? does he do his own research?). I don't know what physical form Clinton's 450 pardons on January 20, 2001 took, but a president might use an autopen (Obama did use such a device). Questions have been raised and definitive answers from SCOTUS are lacking as to whether hand-to-paper signatures are demanded by the Constitution. DoJ at one point thought it was okay. This article lists the Constitutional functions which cannot be delegated: reporting to the Congress on the state of the Union; convening either or both Houses of Congress and adjourning Congress; signing and vetoing bills; receiving ambassadors and public ministers (recognition); appointing and removing ambassadors, ministers, and certain other public officers; nominating federal judges; and making recess appointments However, the Constitutional function of negotiating treaties or numerous functions as commander in chief of the armed forces is generally delegated, within the executive branch. Numerous statutory functions can be delegated (and Congress may say explicitly that some function can be delegated, in passing the law). The matter of implied power to delegate statutory function is the topic of a couple of centuries of litigation, but as an example in Williams v. United States, 42 U.S. 290 SCOTUS held that a law prohibiting the advance of public money in any case whatsoever to the disbursing officers of government except under the special direction of the President does not require the personal and ministerial performance of this duty, to be exercised in every instance by the President under his own hand. SCOTUS has not established bright lines regarding the extent of permissible delegation.
The difference in their treatment is because of the asymmetry in the law. There are "wiretapping" laws pertaining to interception of voice communication, which do not include photographic recording. It is generally illegal to "intercept" an oral, wire or electronic communication (direct conversation, literal wire tap, or listening in on wireless speech): there is an exception that sound can be "intercepted" by a hearing aid or similar device to correct a person's less-than-normal hearing. Using a microphone or any other electronic device is thus "wiretapping". There is no law against taking a photo in public, even using a telephoto lens (however, trespassing to take a photo is illegal). It is true that when a person has no reasonable expectation of privacy, voice recording does not require consent of either party (in Texas). But simply "being in public" does not mean that there is no expectation of privacy – it depends on whether a reasonable person would know that they can easily be heard. In that context, there is still a reasonable expectation of privacy if you're 30 feet from the nearest person. It is hard to say exactly why the law is the way it is. I presume it is partially based on differences in "reasonable expectations of privacy" for sound versus light (sound dies out quickly, light does not). Wiretapping laws are, in the first place (Omnibus Crime Control Act of 1968), a reaction to Supreme Court decisions that limited wiretapping on 4th Amendment grounds in Berger v. New York, 388 U.S. 41 and Katz v. United States, 389 U.S. 347. Since the court did not say that the government taking a picture (without trespassing) is unconstitutional, the US government and states did not construct laws that prohibited that activity.
Consequence? Yes. Unintended? Not so much. Source Sources of Parliamentary Privilege In new-south-wales, Parliamentary Privilege derives from Article 9 of the Bill of Rights 1688 (no, 1688 is not a mistake) which provides: ... the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament. What are &quot;proceedings in Parliament&quot;? &quot;[P]roceedings in Parliament&quot; is defined by case law. In Canadian and English jurisprudence, the definition includes things done outside Parliament in the furtherance of Parliamentary business such as correspondence, and press releases. The leading cases are Roman Corp Ltd v Hudson's Bay Oil and Gas Co Ltd and Re Clark and Attorney-General of Canada for Canada, and Rost v Edwards for England and Wales. Australian case law is split. The leading case is Australian Broadcasting Corporation v Chatterton in the Full Court of the South Australian Supreme Court where Zelling AJC held that privilege applies to restatements by an MP outside Parliament of things said inside, possibly including answering questions about those things in an interview. Prior J rejected this and Jacob J didn't address it. That's one win, one loss and one DNF for those keeping score. For the Federal Parliament, the Parliamentary Privileges Act 1987 defines &quot;proceedings in Parliament&quot; as: ... all words and spoken acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes: (a) the giving of evidence before a House or a committee, and evidence so given; (b) the presentation or submission of a document to a House or a committee; (c) the preparation of a document for purposes of or incidental to the transacting of any such business; and (d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published The northern-territory has similar legislation. In Laurance v Katter, there was a judicial split in the Court of Appeal in the Queensland Supreme Court about whether this definition was unconstitutional. Pincus JA held that s 16(3) was incompatible with the implied freedom of political communication. Following the High Court's decision in R v Richards; Ex part Fitzpatrick and Browne, Fitzpatrick P held that s 16 could not be invalidated or read down to accommodate the implied freedom of political communication. Davies JA read down s 16(3); in his view, the section was enacted merely to make it clear that parliamentary privilege applies not only where a member or witness is sued but also where evidence is sought to be tendered; in both cases, the privilege applies only where the parliamentary proceedings would be impeached or questioned. Davies JA then held that this was not the case in these proceedings. The High Court gave special leave to appeal this decision but the matter was settled before the appeal was heard. So, the exact boundaries of Parliamentary privilege in Australia remain uncertain. However, a prudent journalist should assume that it extends not just to statements made in the House or before a Committee but to statements about those statements made outside by the MP or their staff. Who has the privilege? The privilege belongs to Parliament, not any individual MP, and can only be waived by Parliament. It cannot be invalidated by the courts due to the doctrine of separation of powers. Australian parliaments take the attitude that the waiver of privilege is a procedural matter about their own internal workings and does not require legislation. In England and Wales, legislation has been passed that allows an MP to waive privilege over their (and only their) statements but no such law exists in Australia. Effect of Parliamentary Privilege There are two limbs to Parliamentary Privilege: It provides absolute immunity to the MP (and possibly their staff) for statements made under privilege. That is, following Barilaro v Shanks-Markovina (No 2) [2021] FCA 950, anything and everything that is under privilege is completely inadmissible in court. By legislation in each Australian jurisdiction, qualified immunity is provided for the &quot;fair and accurate reports of parliamentary proceedings. Thus, a media organization is protected from liability for defamation in respect of the publication of a fair and accurate report of parliamentary proceedings unless the plaintiff can establish that, in publishing the report, the media organization was actuated by malice.&quot; The Federal and Northern Territory legislation appears to go further and may provide absolute immunity but that has not been tested. Actuated by malice Malice in law does not mean what it means in everyday English. It means, with respect to defamation, that a statement was made either knowing that it was untrue or with reckless disregard for its truthfulness. In other words, you were deliberately lying, or you made no effort to find out if you were lying. Within the context of Parliamentary Privilege, you cannot rely on the truthfulness of statements made in Parliament to establish that what you reported was the truth. The existence of the statements might be admissible, for example, to establish if privilege attaches to them but the content of the statements themselves has no probative value. In some ways, this is like a hearsay statement: you can testify that the statement was made (if that's relevant) but you cannot testify that there is any truth-value to what was said. Therefore, if you make a nasty remark (that goes beyond &quot;fair and accurate reports&quot;) and your only reliance on the truthfulness of your statement comes from things under Parliamentary Privilege then you have no defence to a defamation claim. So, accusing someone of perjury for what they said to a parliamentary committee rather than just reporting what they said is clearly actuated by malice: it may be true but you know that you can't prove it's true - that amounts to reckless disregard for the truth. Consequences The purpose of Parliamentary Privilege is to allow MPs to vigorously advance the interests of their constituencies (i.e. us) without the fear that they will be called to account for what they say in either a civil or criminal court. It has been argued that some uses of Parliamentary Privilege are an abuse, particularly where they subvert the operations of the judiciary or law enforcement such as by naming suspects, defendants, and witnesses or where the statements would be defamation but for the privilege. However, if they are, it is for the Parliament to discipline the MP by sanction or expulsion, or for the electorate to do so through the ballot box. Such discipline is rare, partly because no one wants to unleash a weapon that could be turned upon themselves but mostly, because Parliament is loath to interfere in the electorate's right to choose their own representatives even if they are wankers. This privilege is clearly at odds with the principle of free speech and inhibits the ability of media outlets to editorialise on matters covered by privilege. This consequence is not unintended, rather it is a deliberate trade-off of one pillar of democratic life against another.