United States Constitution

WHAT IS RECONCILIATION IN THE UNITED STATES CONGRESS

Capitol Hill

By: Akanksha A. Panicker

The journey for a bill to become law is difficult and arduous. Between endless debates and regulations, it can seem impossible to enact a law quickly. However, with majorities in the House and Senate, leaders may well use a special legislative process called ‘reconciliation to advance high-priority fiscal legislation quickly. In the Senate, reconciliation bills are among the very few instances of legislation not being subject to filibuster. Additionally, the scope of amendments is also limited, which renders this process a real advantage for enacting controversial budget and tax measures.

Reconciliation legislation on expenditures, taxes, and the federal debt ceiling should be enacted, and the Senate can pass one bill each year on each issue. Congress will therefore approve a limit of three reconciliation bills each year, but in reality, a single reconciliation bill involving both expenditure and revenue can sometimes be enacted. Extraneous policy amendments are prohibited by the ‘Byrd Rule,’ which often forbids reconciliation legislation from raising the federal debt or deficit after ten years or incorporating adjustments to Social Security.

The Senate Parliamentarian is the in-house rules specialist. In April 2021, it was decided that the Senate would approve multiple budget reconciliation bills in 2021: one for the fiscal year 2021 and one for the fiscal year 2022. Furthermore, the Senate could approve new budget reconciliation measures by referring to them as an updated budget resolution with budget reconciliation guidance included.

The reconciliation process was created by the Congressional Budget Act of 1974 and was first used in 1980.

 [1.0] THE RECONCILIATION FRAMEWORK IN CONGRESS

Reconciliation is a legislative mechanism used by the United States Congress as a parliamentary procedure to speed up budgetary bills through the United States Senate. The Senate filibuster ultimately takes a sixty-vote supermajority for the approval of any bills in the Senate. Still, reconciliation includes a mechanism to prohibit filibuster usage and, in doing so, encourage the Senate to enact a bill through simple majority support. The reconciliation process remains in the United States House of Representatives; however, due to the lack of a supermajority threshold for House bills, reconciliation has had less of an effect on that political body.

Reconciliation is an alternative component of the yearly spending mechanism of Congress. The reconciliation phase usually starts as the president submits a proposal to Congress sometime early in the fiscal year. As a result, each chamber of Congress initiates a concurrent budget mechanism, beginning with the Senate Budget Committee and the House Budget Committee. Every budget committee recommends a budget resolution that establishes funding priorities for the coming fiscal year; to trigger the reconciliation phase, each house of Congress may adopt similar budget resolutions that provide reconciliation guidance. Such committees then pass bills that exceed the funding goals set by their own budget committees, and all separate bills are merged into a single omnibus bill. Thus, through their respective discussion rules, each house of Congress starts debating their corresponding omnibus bills.

The reconciliation mechanism has a limited effect in the House of Representatives, but it has far-reaching consequences in the Senate. Senators could not indeed use the filibuster to block approval of a reconciliation bill endlessly, unlike under most laws, since Senate discussion on reconciliation measures is restricted to twenty hours. As a result, reconciliation measures need just a mere simple majority of Senate votes to succeed, rather than the sixty-vote supermajority needed to trigger cloture to overcome a filibuster. Senators could potentially block the approval of a reconciliation bill by proposing an unrelenting list of changes through a procedure regarded as a ‘Vote-a-Rama,’ however, unlike the current filibuster, senators presenting these amendments would have to get up and deliver the amendments orally.

Although this reconciliation framework requires a bill to circumvent the filibuster in the Senate, it has little effect on the other fundamental provisions for proposal adoption outlined in the Constitution’s Presentment Clause. The House and Senate would still approve an identical bill and send it to the president. The president may sign or veto the measure, and Congress can overturn the president’s veto by a two-thirds majority vote of both chambers.

[2.0] THE BYRD RULE AS A RESTRICTION

The Byrd Rule, named after Senator Robert Byrd, was implemented in 1985 and revised in 1990. The Byrd Rule grants senators the opportunity to object to any amendment that does not affect the amount of expenditure or revenues or anything under which the change of spending or revenues is ‘merely incidental,’ to prohibit ‘extraneous’ laws from benefiting from the expedited reconciliation phase.

The Byrd Rule distinguishes a clause as ‘extraneous,’ and therefore unavailable for reconciliation, in the following six cases when it [A.]  may not result in a change in outlays or revenues; [B.]  results in an upward movement of outlays or a decline in revenues while the instructed committee is not following the directives, [C.] it is beyond the jurisdiction of the committee that sent the title or provision for implementation in the reconciliation measure; [D.] it results in a change in outlays or revenues that is only incidental; [E.] it would increase the deficit for a fiscal year beyond those covered by the reconciliation measure (usually a period of ten years); or [F.]  it recommends changes in Social Security. 

The Byrd Rule would not ignore the insertion of extraneous clauses and objected to senators to delete provisions through formal opposition. Any senator can present a procedural objection to an extraneous clause, which the Presiding Officer would then rule on, usually on the recommendation of the Senate Parliamentarian: a majority of sixty senators is necessary to reverse their ruling. Although the Vice President (as President of the Senate) has the authority to overrule the parliamentarian, this has not occurred since 1975.

The Byrd Rule binds only if a senator specifically raises a ‘point of order.’ If one does, it takes the consent of sixty senators to overturn a point of order. Items removed from a reconciliation bill following this rule are dubbed as ‘Byrd droppings’ in a tongue-in-cheek instance of Congressional humor and often are dropped before a bill comes to the floor. The process of deleting those provisions is similarly known as a ‘Byrd bath.’

Congress has the authority to approve three reconciliation measures annually, with every bill tackling the three main aspects of reconciliation: taxes, expenditures, and the federal debt ceiling. However, once Congress passes a reconciliation bill that addresses more than one of those issues, it cannot pass another reconciliation bill later in the year that addresses one of the prior reconciliation bill’s topics of revenue, spending, or debt. In fact, reconciliation measures are normally passed just once a year.

[3.0] HOW RECONCILIATION WOULD WORK

Reconciliation is basically a means for Congress to pass bills on taxation, budgets, and the debt ceiling by just a simple majority in the Senate (fifty-one votes, or fifty if the vice president breaks a tie) while eliminating the possibility of a filibuster, which takes sixty votes to defeat. 

The budget reconciliation mechanism is a discretionary apparatus under the Congressional Budget Act of 1974 that works in conjunction with the periodic budget resolution system. The primary goal of the reconciliation phase is to strengthen Congress’ power to amend existing legislation aiming to retain tax and expenditure amounts in line with the budget resolution’s initiatives. As a result, for a significant majority of the budget, reconciliation could be the most powerful budget control mechanism open to Congress.

Reconciliation is a dual-stage configuration in which directives are contained in the budget agreement, authorizing the relevant committees to produce legislation implementing the intended fiscal results. The resulting legislation (usually inserted into an omnibus spending bill) is debated in the House and Senate under augmented protocols for expedition.

[3.1] THE DUAL STEP MEASURES FOR RECONCILIATION

The Congressional Budget and Impoundment Control Act requires the House and Senate to pass a minimum of one budget bill annually. The budget proposal is in the format of a concurrent resolution and is therefore not submitted to the President for approval or veto. It acts as a general legislative declaration on effective income, expenditures, and debt strategies and a reference to subsequent review of legislation incorporating those policies at the organizational and programmatic levels. Budget settlement policies are applied using several methods, including points of control. The 1974 act established the House and Senate Budget Committees, which have sole authority over budget proposals and are responsible for overseeing their implementation.

The House and Senate Budget Committees depend on baseline budget estimates compiled by the Congressional Budget Office in preparing a budget resolution. A budget resolution normally reflects several predictions about policy activity that are likely to occur throughout a session that could allow revenue and expenditure levels to vary from baseline rates. However, by permanent legislation, the majority of taxes and direct investment happens immediately next year. As a result, if the committees with authority over revenue and direct spending services do not report legislation amending current law to carry out the budget resolution policies, income and direct expenditures for these activities will possibly remain unaffected.

The budget reconciliation protocol is an optional procedure that works in tandem with the budget resolution procedure. The primary goal of the reconciliation phase is to strengthen Congress’ power to amend existing legislation to keep tax and expenditure amounts in line with the budget resolution’s policies. As a result, with a considerable majority of the budget, compromise is likely the most powerful budget control mechanism open to Congress.

The method of reconciliation is multi-staged. Initially, the budget agreement includes reconciliation directives that guide the relevant committees to produce legislation that achieves the required budgetary results. The instructed committees send their policy proposals to their corresponding Budget Committees by the timeline specified in the budget resolution. The Committees further merge them without major changes into an omnibus budget reconciliation package.

The second phase is for the House and Senate to examine the resulting reconciliation bills under expedited procedures. The Senate’s discussion on every reconciliation bill is restricted to twenty hours (and ten hours on a conference report), and changes should be salient. During the review of reconciliation proposals in the House, the House Rules Committee usually limits discussion and the offering of amendments.

When only one committee is briefed, the procedure requires the committee to present the reconciliation legislation effectively to its parent chamber, without the Budget Committee. In certain years, budget proposals contained reconciliation guidelines that enabled the House and Senate to discuss multiple reconciliation bills. The procedure is completed until the reconciliation provisions requested in the budget agreement are signed or vetoed by the President. In the aftermath of a veto, Congress may establish another reconciliation bill only after passing another budget resolution comprising reconciliation guidelines.

Most recently, President Joe Biden proposed the American Rescue Plan, a USD 1.9 trillion economic stimulus bill, to hasten the United States’ rebound from the economic and health consequences of the COVID-19 pandemic and the ensuing downturn. It was intended to be one of the first bills introduced in the 117th Congress. The package, which was first proposed on January 14, 2021, drew on several of the provisions used in the CARES Act from March 2020 and the Consolidated Appropriations Act, 2021. According to the Byrd Law, the United States Senate Parliamentarian decided on February 21st  that a clause of the American Rescue Plan asking for a USD 15 minimum wage raise should not be included under Reconciliation. On March 11th, 2021, the bill was signed into law.

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Sources

1. Bills passed using the reconciliation process include the Consolidated Omnibus Budget Reconciliation Act of 1985, the Personal Responsibility and Work Opportunity Act of 1996, the Economic Growth and Tax Relief Reconciliation Act of 2001, the Health Care and Education Reconciliation Act of 2010, the Tax Cuts and Jobs Act of 2017 and the American Rescue Plan Act of 2021.

2. The Congressional Budget and Impoundment Control Act of 1974 (Pub.L. 93–344, 88 Stat. 297, 2 U.S.C. §§ 601–688) is a United States federal law that governs the role of the Congress in the United States budget process.

3. What’s in a Vote-a-Rama? The New York Times, https://www.nytimes.com/2021/03/05/us/politics/vote-a rama.html (last visited Apr 17, 2021) 

4. ‘Vote-aromas (1977 to Present) U.S. Senate: ‘Vote-aromas (1977 to Present), https://www.senate.gov/legislative/Votearama1977present.htm (last visited Apr 17, 2021) 

5. The Presentment Clause, which is contained in Article I, Section 7, Clauses 2 and 3 of the Constitution, provides:

‘Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a law, be presented to the President of the United States: If he approves he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two-thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two-thirds of that House, it shall become a Law. But in all such cases, the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House, respectively. If the President does not return any Bill within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which case it shall not be a Law. Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the case of a Bill.’

6. Section 313 of the Congressional Budget and Impoundment Control Act of 1974 Pub.L. 93–344

7.Byrd Brains GovExec.com, https://web.archive.org/web/20120119095000/http://www.govexec.com/dailyfed/0405/041805ol.htm (last visited Apr 17, 2021)

8. What Is ‘Reconciliation’? Democrats Face Hurdles To Use It For COVID Relief NPR, https://www.npr.org/2021/02/02/962812082/what-is-reconciliation-democrats-face-hurdles-to-use-it-for-covid-relief (last visited Apr 17, 2021)

9. The United States Senate voted 50–49 to open debate on the resolution, which would allow Democrats to pass the relief package without support from Republicans through the process of reconciliation. The House voted 218–212 to approve the budget resolution. On February 4, a vote-a-Rama session began. The Senate introduced amendments to the relief package, including an amendment in a 90–10 vote that would provide direct relief to the restaurant industry. Vice President Kamala Harris cast a tie-breaking vote as President of the Senate for final Senate passage of the reconciliation bill, sending it to the House approval of the change

10. Coronavirus Aid, Relief, and Economic Security Act, Pub.L. 116–136

11. Consolidated Appropriations Act, 2021 H.R. 133. December.

 

UNDERSTANDING THE 25TH AMENDMENT AND IMPEACHMENT PROCEEDINGS

By: Akanksha A. Panicker

The twenty-fifth amendment (Amendment XXV) to the United States Constitution concerns with presidential succession and disabilities. It reiterates that the Vice-President would become President under the circumstances of presidential [A.] death [B.]  resignation or [C.] disqualification from office. It points out how a vacancy in the Vice President’s office can also be formed.

This also provides for the temporary transition of the President’s responsibilities to the Vice-President, either by the President alone or by the Vice-President, along with a majority of the President’s cabinet. In this case, the vice president will become acting president. The amendment points out how the President’s authority and responsibilities will be passed over to the President. 

The storming of the U.S. Capitol by supporters of U.S. President Donald Trump on Wednesday has prompted some lawmakers to remove him from office before President-elect Joe Biden is sworn in on Jan. 20. Consequently, the debate has ensued between the use of second-time impeachment proceedings against the 25th Amendment. However, both scenarios provide that Vice President Mike Pence would take over until Biden’s inauguration. 

[1.0] THE PURPOSE OF THE 25TH AMENDMENT

The 25th Amendment, ratified in 1967 and adopted in the wake of President John F. Kennedy’s assassination in 1963, deals with presidential succession and disability. The structure of the Amendment sees the first three sections dealing with resignation, death, or incapacitation. The fourth section, however, addresses the procedure for removal and the  route the vice president and a majority of the officials who lead executive agencies — commonly thought of as the cabinet — must adopt to declare that the president is ‘unable to discharge the powers and duties of his office.’ That process ultimately requires a two-thirds vote of both houses of Congress. The ‘principal officers of the executive departments’ are the fifteen Cabinet members enumerated in the United States Code at 5 U.S.C. § 101

Section 4 addresses situations where a president cannot do the job but does not step down voluntarily. While the 25th Amendment has mostly been constructed for physical or mental incapacity, it could also be tailored to fit a President dangerously unfit for governance. It must be noted that invocation of the 25th Amendment is tremendously difficult: for the 25th Amendment to be invoked, Pence and the majority of Pres. Pres. Trump’s Cabinet would need to declare that Pres. Trump is unable to perform the duties of the presidency and remove him. Pence would take over in that scenario. Section 4 has never yet been invoked.

[1.1] PROCEDURE FOR INVOCATION OF THE 25TH AMENDMENT

Subsequently, Pres. Trump may announce that he is worthy of commencing his work if the Cabinet does not challenge Pres. With Trump’s determination, he can reclaim control if they were to contest Pres. Congress then determines Trump’s declaration, but Pence would continue to serve as president in the meantime. The first step would be for Vice President Mike Pence and a majority of the cabinet to provide a written declaration to the Senate’s president pro tempore and the Speaker of the House that Pres. Trump ‘is unable to discharge the powers and duties of his office.’ That would immediately strip Pres. Trump of the powers of his office and make Mr. Pence the acting president. An immediate written declaration can then be delivered to Sen. Grassley and Speaker Pelosi, reaffirming duties’ performance, which would allow them to be resumed. 

Mr. Pence and the cabinet must deliver another declaration to the congressional leaders within four days, restating their concerns whereinafter Mr. Pence would take over once more as acting president. This declaration will then assemble congress within 48 hours and will require a vote within twenty-one days to decide a majority.  If two-thirds of both the House and the Senate agree that Mr. Trump is unfit to retain Presidentship, he would be stripped permanently of the position, and Mr. Pence would continue serving as acting president. If the vote in Congress falls short, Mr. Trump will resume his duties.

A two-thirds vote in both houses will be expected to hold Trump out of the proceedings. But the Democratic House may also merely defer voting on the substantive conflict until Pres. Trump’s term expires. The drafters of the 25th  amendment believed that it was a complex procedure that would make it exceptionally rare to perform.  It is much more difficult to force the President from office under the 25th amendment than in the impeachment process. The President may be charged by a simple majority in the House and suspended from office by a two-thirds vote in the Senate if impeachment proceedings have been initiated against them.   Stripping the President of power in compliance with the 25th amendment requires a two-thirds majority of both houses.

Crucially, the president does not retake power immediately upon declaring himself able. Rather, the vice president remains acting president during the four-day waiting period. Whether the vice president and the Cabinet can voluntarily transfer power back to the president in less than four days is less clear. If the vice president and the Cabinet thereupon reaffirm the president’s inability, the vice president remains in power as Congress deliberates to settle the dispute. However, legal experts have raised questions regarding the misinterpretation of the section, insofar as a common presumption is that the president retakes power immediately upon his declaration that he is able.

A clear-cut issue with this interpretation is that the presidential declaration of fitness, in the wake of the Cabinet’s invocation, cannot mean a power-splintering between the Vice-President and the President. A twin claim to the Presidentship means turmoil in the White House, the executive branch, and the military. Ensuring a fair trial could also be a major issue since the president could attempt to fire the Cabinet to prevent it from re-declaring his inability and sending the case to Congress. Even in the waning hours of office for President Trump, the struggle would mean a significant weakening of government. 

[2.0]  UNDERSTANDING IMPEACHMENT

A misunderstanding of ‘impeachment’ would be that it corresponds to the president’s expulsion from office. In practice, the situation applies only to the House of Representatives, the lower chamber of Congress, presenting allegations that the president has committed a ‘high crime or misdemeanor’ – comparable to a court case’s indictment.

Whenever a simple majority of the 435 members of the House decides to file charges, classified as ‘articles of impeachment,’ the proceedings shall be appealed to the Senate, the upper chamber, which then holds a hearing to ascertain the President’s guilt. The Constitution decrees a two-thirds majority of the Senate imperative in the prosecution and ousting of the President from office. 

Impeachment in the United States is a mechanism in which the legislature (usually in the form of a lower house) accuses a civil officer of the government with offenses supposedly committed, similar to presenting an indictment by a grand jury. Impeachment may arise at the federal or state level. The Federal House of Representatives may impeach federal officials, including the president. Most state legislatures may do the same for state officials, including the governor, in compliance with their corresponding federal or state constitutions.

Pres. The Democratic-led U.S. House recently charged Trump in December 2019 for abuse of power and obstruction of Congress due to his measures to compel Ukraine to probe Biden and his son. The Republican-led Senate absolved him in February 2020.

[2.1] GROUNDS OF IMPEACHMENT

The Constitution limits grounds of impeachment to ‘Treason, Bribery, or other high Crimes and Misdemeanours.’ The precise meaning of the phrase ‘high crimes and misdemeanors’ is not defined in the Constitution itself.

Since impeachment as a remedy is intended to punish officers committing discrepancies with their official duties, the grounds for impeachment cannot be automatically categorizable. However, Congress has identified three general types of conduct that constitute grounds for impeachment, although these categories should not be understood as exhaustive, being [A.] improperly exceeding or abusing the powers of the office; [B.] behavior incompatible with the function and purpose of the office; and [C.] misusing the office for an improper purpose or personal gain.

[2.2] THE TRIAL IN IMPEACHMENT

The hearings shall take place in the manner of a trial, with the Senate having the right to call witnesses with either party having the right to cross-examination. The House representatives, who have been granted the joint title of managers during the process of the proceedings, shall submit the evidence to the court, and the accused officer shall have the right to defend themselves with their own counsel. Senators must either take an oath or assert that they will fulfill their duties with due care and integrity. Typically, after reading the allegations, the Senate deliberates in private. The Constitution requires a two-thirds supermajority to convict the impeached individual.

The Senate enters a verdict on its judgment, whether to prosecute or acquit, and a record of the judgment is submitted with the Secretary of State. Upon conviction in the Senate, the official is immediately suspended from office and may even be disqualified from holding a potential office. The tribunal is not an actual criminal procedure since it more accurately reflects an application for dissolution of the civil service in terms of the injustice envisaged. Consequently, the suspended official can also be subject to criminal charges in the form of a subsequent criminal proceeding. The President does not offer a pardon in the prosecution but may do so in any subsequent Federal court proceeding.

In the case of the president’s impeachment, the Chief Justice of the Supreme Court presides over the trial. The Constitution is silent about who would preside in the case of the impeachment of a Vice President. It is doubtful the Vice President would be permitted to preside over their own trial. As President of the Senate, the Vice President would preside over other impeachments. If the Vice President did not preside over an impeachment (of anyone besides the President), the duties would fall to the President pro tempore of the United States Senate.

A conviction would require  ‘the concurrence of two-thirds of the [Senators] present’ for at least one article is required. If there is no single charge emanating leading to a ‘guilty’ vote from two-thirds of the senators present, the defendant is acquitted, and no punishment is imposed.

Conviction shall automatically dismiss the individual from office. Upon indictment, the Senate can vote to further penalize the person by prohibiting them from holding a future federal office, elected or appointed. Although the requirement for disqualification is not clearly specified in the Constitution, the Senate believes that disqualification votes only require a clear majority rather than a two-thirds supermajority. The Senate used disqualification sparingly since only three people were excluded from holding a potential office.

[2.3] HOW DOES THIS TRANSFER OF POWER WORK?

The advantage of removing a problematic president via the 25th Amendment is speed: if Mike Pence, the vice-president, and more than half of the executive agency heads in the cabinet collaborate, the 25th Amendment will lead to faster dismissal of the President than impeachment proceedings. In fact, the House and the Senate minority holder have publicly entreated the Vice President to do the same. Barring this, new impeachment proceedings should be initiated. 

Securing two-thirds of both houses of Congress to agree to Mr. Trump’s removal seems like a long shot, especially a fortnight away to the new administration. However, the possibility of two individuals claiming Presidentship at the same time is perhaps the reason the Twenty-Fifth Amendment was drafted, clarifying who at any moment is charged. 

The main issue is a misreading in Section 4, wherein the text says that the president ‘shall resume’ his powers ‘unless’ the vice president and the Cabinet disagree ‘within four days.’ Here, ‘unless’ means that the action is pending, not that it is reversible.

A bad faith reading of the text would mean that the vice president’s status as acting president essentially has no power since any decision can be overturned in four days. Furthermore, if the President is immediately granted power after the four-day interval, they can immediately discharge the Cabinet after the deadline is passed. This would provide power without any checks and balances to it. Considering that the 25th Amendment was initiated to understand power roles in cases of turmoil, it makes little sense for control to be tossed back and forth during the proceedings’ pendency. 

Since Section 4 mentions the vice president’s status as acting president in two places, it must be understood that [A.] the vice president ‘immediately’ takes power as acting president post the incipience declaration of the president’s unfitness and [B.] that the Section decrees says that if the president loses the congressional vote, the vice president ‘shall continue’ as acting president.  Suddenly taking back Presidential power does not make sense in constructing this clause, especially since it would cause a discrepancy in the roles occupied by public officials. 

The correct reading also makes better sense structurally since it would see a power transfer happen one time. Taking legislative intent and the inordinate skewed balance it would present to the Cabinet, it is safe to assume that the bad faith reading cannot be held. Section 4’s drafters meant for the vice president to be in charge during the waiting period. Vagueness in the text cannot compromise the meaning of the Section as well. 

For information on serving legal papers, click here or call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers by clicking here.

Sources

1. Amendment XXV Section 1. In case of removing the President from office or of his death or resignation, the Vice President shall become President.

2. Amendment XXV Section 3.

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

3. Amendment XXV Section 2.

Whenever there is a vacancy in the vice president’s office, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

4. 5 U.S. Code §101.Executive departments

5. Amendment XXV Section 4.

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session.

 If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by a two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

6. The amendment was ratified in 1967 in response to John Kennedy’s assassination in 1963, which underlined the need for a clear procedure to determine whether the president can discharge his duties. Since then, the first three sections of the amendment have been used six times. Gerald Ford and Nelson Rockefeller were appointed vice-president in 1973 and 1974; Gerald Ford succeeded Richard Nixon as president in 1974; and Ronald Reagan and George W. Bush briefly transferred power to their vice-presidents (once and twice, respectively) while they were under general anesthesia for colonoscopies.

7. The president pro tempore of the United States Senate (often shortened to president pro tem) is the second-highest-ranking official of the United States Senate. Article One, Section Three of the United States Constitution provides that the vice president of the United States is the president of the Senate (despite not being a senator), and mandates that the Senate must choose a president pro tempore to act in the vice president’s absence. Unlike the vice president, the president pro tempore is an elected member of the Senate, able to speak or vote on any issue.

8. Currently, Senator Chuck Grassley, Republican of Iowa

9. Currently, Representative Nancy Pelosi, Democrat of California

10. “Article II.” LII / Legal Information Institute

11. Staff of the Impeachment Inquiry, Committee on the Judiciary, House of Representatives, Constitutional Grounds for Presidential Impeachment, 93rd Conf. 2nd Sess. (Feb. 1974), 1974 Impeachment Inquiry Report

UNDERSTANDING THE FOREIGN EMOLUMENTS CLAUSE

US Constitution

By: Akanksha A. Panicker

The Foreign Emoluments Clause is a provision in Article I, Section 9, Clause 8 of the Constitution of the United States which generally forbids the awarding of titles of nobility by the federal government and prevents members of the federal government from accepting presents, emoluments, offices or titles from foreign states and monarchies without the approval of the United States Congress. 

Federal officeholders are prohibited from receiving anything of value from a foreign state or its representatives. Additionally, the domestic emoluments clause also prohibits the president from receiving any such emolument from the federal government or the states beyond the normal compensation for the services entitled to the Chief Executive.  The main driving force behind the clause is to prevent influence, even unconscious, in the treatment meted out by individuals holding office. Consequently, gift-giving would not further corrupt practices, even if not intended to do so. Often recognized as the Titles of Nobility Provision, which was intended to safeguard U.S. federal authorities from so-called ‘corrupting foreign powers,’ the rule is strengthened by the directly related ban on state titles of nobility in Article I, Section 10, and, more broadly, by the Republican Guarantee Clause in Article IV, Section 4.

While there has been some controversy about the precise nature and scope of the foreign emoluments provision, virtually all academics accept that it generally extends to all federal officeholders, whether designated or chosen, up to and including the president. Furthermore, the clause does not merely include gifts of money or valuable object. It includes all benefits that could compromise the official’s absolute loyalty to their post, including an advantage or service. Special considerations in business transactions with states or sanctioned businesses within the state or anti-competitive benefits to the office would be considered in this bracket. The Foreign Emoluments Clause has to apply if the foreign government has significant control over an organization contemplating transfer of a  present or emolument to an  American official. 

Arguably, the clause would forbid even competitively fair transactions with foreign states because the profit accruing to the officeholder would fall within the ordinary meaning of ‘emolument,’ and because such arrangements would threaten exactly the kind of improper influence that the clause was intended to prevent. Although not all emoluments are gifts, or all gifts emoluments, the term ‘emoluments’ in the Foreign Emoluments Clause, in context, might be a way of ensuring that the clause picks up transfers of value more generally. 

[1.0] WHAT IS AN EMOLUMENT

Before proceeding, it must be understood what could constitute an emolument, a question that has occupied legal scholars for quite a while. The debate has ensued about whether the clause essentially restricts private market transactions between mentioned officials and governments or whether the prohibition is centered around the employee’s office. To a large extent, this has been decided on a casewise basis. 

The word ‘emolument’ is based on the Latin expression emolument which has a double significance, implying commitment or labor, and the second definition as a benefit, again, or a favor.

Emoluments may depend given the nature and period of its provided services. The word is obsolete and little used nowadays, even in legal cases, particularly in the Emoluments Clause in the United States.

The Constitution contains three provisions that mention the term ‘emolument’: 

  1. The Foreign Emoluments Clause.Article I, Section 9, Clause 8 provides that ‘no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State’;
  2. The Domestic Emoluments Clause. Article II, Section 1, Clause 7 provides that ‘[t]he President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States or any of them’; And
  3. The Ineligibility Clause. Article I, Section 6, Clause 2 provides (among other things) that no Member of Congress shall ‘be appointed’ during his or her term ‘to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time[.]’

Determining who is subject to the terms of the Emoluments Clause is important since the Foreign Emoluments clause is not as clear-cut as the Domestic Emoluments Clause, clear in its application to the President. The Foreign Emoluments clause applies to any individual who holds an ‘Office of Profit or Trust’ under the United States. The prevailing understanding is that this refers to federal rather than state officials. Under the Department of Justice, the Office of Legal Counsel refers to these offices as those that receive a salary, with offices of trust instead requiring discretion, experience, and skill. For decades, the  OLC has guided government employees and officials, including presidents, on potential violations of the Emoluments Clauses. 

 A major issue is whether elected federal officers like the President are subject to this clause, but it is under debate. The OLC decisions do offer a part of the few perspectives into understanding the Emoluments Clauses by a government body. While the assessments may not expressly support the expansive concept of ‘emoluments,’ however, they indicate that the OLC has consistently considered the two clauses’ anti-corruption spirit. Public opinion about the Emoluments Clauses suggests that the OLC has considered three considerations in deciding if the recognition of such benefits or gains infringes the Domestic or Foreign Emoluments Provision. In analyzing issues surrounding the Foreign Emoluments Provision, the OLC identified whether [A.]  the individual or individuals acquiring the benefits or gains hold any Office of Profit or Trust, [B.]  the institution supplying the emoluments is actually a foreign nation, and [C.] the reception of the emoluments will make the beneficiary vulnerable to unfair interference or misconduct.

[2.0] PURPOSE OF THE EMOLUMENTS CLAUSE

The Emoluments Clause’s primary purpose is to prohibit such people, particularly all government offices, from taking personal advantage of their particular and exalted role in society.

The Foreign Emoluments Provision is enacted to discourage foreign interference and abuse in the U.S. government. It stems from the tradition of offering presents that European officials used to practice while meeting international leaders. Preventing the acceptance of a donation or some other reward thereby eliminates any impact over the gift’s future beneficiary.

The Domestic Emoluments Provision aims to protect the President’s freedom and, in the same manner, to minimize any control over him through the right to change his pay.

The Ineligibility Emoluments Provision has a similar purpose: to divide the authority divisions and prohibit executive control on the legislature.

[3.0] BACKGROUND TO THE EMOLUMENTS CLAUSE

The primary purpose of the framers of the constitution for this specific provision was indeed two-pronged, intending to [A.] prohibit the creation of a nobility-centric society in the United States and  [B.] to preserve the republican systems of government from becoming corrupted by certain regimes. In Federalist No. 22, Alexander Hamilton said, ‘One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.’ Accordingly, to tackle such ‘foreign corruption’ delegates to the Constitutional Convention drafted the provision to serve as a catch-all for every endeavor by foreign governments to manipulate the state or the municipality through gift-giving

The Foreign Emoluments Clause is fundamentally peculiar since it exists as a  ‘negative’ clause—a limitation that forbids the passing of laws for a certain cause. Such constraints are unique because the Constitution has traditionally been viewed as representing particular (i.e., ‘positive’) bases of authority, forfeited by States in their otherwise autonomous capacity. Moreover, it is a negative provision without a positive converse. A typical example of this is how the Commerce Clause provides a constructive contrast to the limitations enforced by the Dormant (or ‘Negative’) Commerce Clause. However, neither the express nor the inferred affirmative awarding of authority occurs as a balance to the provision’s limitations. That is why the provision was quoted by anti-federalists, who sponsored the introduction of the Bill of Rights.

Therefore, why forbid Congress from doing something it will have no authority to do? This provision would either have little significance or suggest that, if it were omitted, the Congress would have the authority in dispute, either based on the theory that such general terms in the Constitution can be read in such a way as to grant it or based on the principle that the Congress has powers that are not specifically reserved. But this article was part of the confederation and is claimed to have been inserted into the constitution with considerable care. Even a precautionary clause suggests a question that it is necessary; yet, if that is the case, it is clearly indeed necessary in all related situations  

[4.0] ENFORCING THE EMOLUMENTS CLAUSE.

Separate from concerns related to the Emoluments Clauses’ objectives is how the mandates of the regulations are applied, and when and to what degree the federal courts and the Congress have a role to play in resolving breaches of the Clauses. The doctrine of standing has become the key challenge in modern cases concerning the President, wherein standing as a threshold restriction as to why an individual or corporation suing in a federal court has the ‘right to make a legal claim or to seek judicial enforcement of a duty or right’ is called into question. The limitation incorporates a constitutional feature of Article III of the U.S. Constitution, which generally restricts federal judicial powers’ operation to ‘cases’ or ‘controversies.’

Since 2016, three cases have been brought against President Donald Trump, claiming breach of the Foreign Emoluments provision about reimbursement from foreign countries for services to the President’s assets or license arrangements with Trump’s corporate companies.

One suit has been withdrawn and consequently overturned, restored, and remanded to the circuit court. There are two more outstanding lawsuits. Government officials and representatives of Congress are expected to adhere to the regulations and codes of ethics and conflict of interest, some of which are enforced more by the Foreign Emoluments Clause. There is a strong consensus that the Foreign Emoluments Clause extends to designated positions in the federal government. Correspondingly, the Foreign Gifts and Decorations Act prohibits staff in appointed offices from accepting ‘gifts’ or ‘decorations’ by international governments without Congress’s approval. While there is some controversy as to whether the Foreign Emoluments Clause extends to elected public representatives, the code of conduct and ethics for Members of the House and the Senate specifies that the Constitution forbids them from accepting ‘presents’ from foreign entities. 

These Requirements are all in keeping with the Foreign Emoluments Clause’s intent, in that they guarantee that federal officials and representatives of Congress should not inappropriately solicit or obtain presents from foreign sources.

For information on serving legal papers, click here or call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out how a president pardons himself: presidential pardon rules Articles by clicking here.

Sources

1. Article I, Section 1, Paragraph 7:

 The clause provides that: The United States shall grant no Title of Nobility: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

2. Guarantee Clause ARTICLE IV, SECTION 4

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.

3. The Department of Justice Office of Legal Counsel has opined that

[t]he language of the Emoluments Clause is both sweeping and unqualified. See 49 Comp. Gen. 819, 821 (1970) (the ‘drafters [of the Clause] intended the prohibition to have the broadest possible scope and applicability’). It prohibits those holding offices of profit or trust under the United States from accepting ‘any present, Emolument, Office, or Title, of any kind whatever’ from ‘any . . . foreign State’ unless Congress consents. U.S. Const, art. I, § 9, cl. 8 (emphasis added). . . . The decision whether to permit exceptions that qualify the Clause’s absolute prohibition or that temper any harshness it may cause is textually committed to Congress, which may give consent to the acceptance of offices or emoluments otherwise barred by the Clause

4. D.C. and Maryland v. Trump No. 8:17-cv-01596; Citizens for Responsibility and Ethics in Washington v. Trump 

5. Blumenthal v. Trump, 949 F.3d 14 (D.C. Cir. 2020),

EXPLAINING THE FIRST AMENDMENT

US Constitution

By: Akanksha A. Panicker

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” – The First Amendment to the U.S. Constitution.

The first amendment is one of the most important tenets of the United States’ Constitution. The First Amendment (Amendment I) to the United States Constitution prevents the government from adopting legislation that would abrogate the free [A.] establishment or exercise of religion, [B.] the freedom of speech, the freedom of the press, [C.] the freedom of assembly, or the right to [D.]  petition the government for a redress of grievances. It was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights.

First Amendment freedoms are guaranteed to every individual in the United States and are a universal right guaranteed to the people. Furthermore, the First Amendment can also prevent the government from restricting information that an individual can access, providing a right to receive information. 

[1.0] FREEDOM OF SPEECH

Freedom of speech seems to form the core of Constitutional freedoms.  When the average American thinks of the First Amendment, free speech comes to mind and has to gather misconceptions regarding its scope.  But what really is freedom of speech? Can speech be restricted, and if so, when?

At its core, free speech is the free and public expression of one’s opinions without fear of censorship, interference, or restraint by the government. 

The Supreme Court in Chicago Police dept v Mosley said:

“But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. […] To permit our politics and culture to continue building and assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”[

Unprotected speech under the First Amendment includes the following: 

  1. Obscenity:  Obscene speech, even if it does not do any actual harm, is considered to be illegal. However, the determinant of what is considered ‘obscene’ is a gray area and must be deliberated by an impartial adjudicating body not to undercut freedom of speech. This is because determining what is obscene is a highly subjective issue, dependent on the particular views of all individuals involved. 
  2. Fighting words: Fighting words, or words deliberately meant to inflict injury, cannot be protected by freedom of speech. Consequently, they are punishable in law. However, 

For this speech to be unprotected by the First Amendment, the speech must be a threat that is an immediate breach of peace. Threatening to murder an individual comes under the context of fighting words. 

  1. Defamation (including libel and slander): While defamation is an exception to freedom of speech, truth is an absolute defense to libel claims. The core evidence in defamation cases is the requirement of a statement’s falsity, without which the case cannot subsist. In fact, even substantial truth as a doctrine can be held to be sufficient to dismiss a defamation claim, depending on the jurisdiction.
  2. Child pornography: Any content that is explicit in its portrayal of children is against the first amendment. Furthermore, it does not have to be obscene to be out of the First Amendment limits, and there is no constitutional protection for possession, even in the individual’s home. 
  3. Perjury: Perjury is perpetrated whenever a person knowingly” bears witness to or panders to claims that they do not believe to be true. Perjured information obtained cannot be considered to fall within the First Amendment’s confines insofar as it undermines the ability of courts to obtain truthful testimony and effectively administer justice.
  4. Incitement to imminent lawless action: Imminent lawless action is a standard established by Brandenberg v Ohio. Freedom of speech is not applicable when there is a violation of the upholding of the imminent and likely law. To determine the same, the case law states that it is necessary that  [A.] the advocacy is directed to inciting or producing imminent lawless action, and [B.] is likely to incite or produce such action

Incitement to commit suicide is also not protected under the First Amendment. 

  1. True threats: Threats to commit a crime (for example, “I’ll kill you if you don’t give me your money”) can be punished.
  2. Plagiarism of copyrighted material: A large part of permissible restrictions on free speech is based on intellectual property rights, infringement of which cannot class a First Amendment charge.

The First Amendment protects not only the act of speaking but also the affirmative act of not speaking. The right to be silent extends to business enterprises, even when the compelled speech relates to commercial activity. For the government to restrict speech other than child pornography, obscenity, and fighting words, a “strict scrutiny” test/ analysis must be applied by the courts. Consequently, there needs to be a ‘compelling government interest’ for the restriction to be levied, and it must be done in the ‘least restrictive means’ to do the same and fulfill the interests of the government. 

[2.0] FREEDOM OF PRESS

Freedom of the press refers to the constitutional guarantee for all media to report the news to circulate opinion without government censorship. This right was considered “one of the great bulwarks of liberty” by the Founding Fathers of the United States. However, it isn’t easy to ascertain the same scope, especially with the emergence of new media. 

An absence of statutory and administrative control on disseminating information, ideas, knowledge, and thoughts characterize the press’s freedom. Freedom of the press means freedom of [A.] access to all sources of information, [B.] publication, and [C.] circulation. Peripherally, this would also include the freedom of inquiry, freedom of thought, and freedom to teach. 

Furthermore, it is essential for a checks and balances system in democracy for the press to criticize the government. 

However, the level of protection concerning free speech and the free press given by the First Amendment is not limitless. The landmark case of New York Times Co. v. Sullivan provides for the same, wherein it laid down the ‘actual malice’ test for libel, after which the press could be held liable for the statements made by them regardless of their freedoms. 

[3.0] FREEDOM OF RELIGION 

The First Amendment introduced bold new ideas to the world for freedoms, among which were the ideals that there could not be a state religion on the public and that individuals could not have restrictions on religious practices.  Consequently, freedom of religion is protected under the [A.] Establishment Clause and [B.] the Free Exercise clauses of the Constitution in a two-pronged makeup for religious liberty. Essentially, Establishment cases in Constitutional law almost exclusively deal will the ban on Congress becoming too entangled with any religion, is expressly barred from doing so. The Establishment Clause provides for a “wall of separation” between Church and State, forbidding the passing of state, local, and federal laws that pertain to the  “establishment of a religion” in its purpose. The concept of denominational neutrality thus takes the forefront and drives the Establishment Clause.  

Laid down consequently in the Lemon test, then it was decided that for legislation to be considered valid in the eyes of the Establishment Clause if it is meant to help religion, it must fulfill conditions to the same, namely [A.] the primary purpose of the assistance must be secular, [B.]  the assistance must neither promote nor inhibit religion, and [C.] there should be no excessive entanglement between church and state

Free Exercise cases refer to the individual right of any American to practice their faith. The overlap between the clauses can be significant; However, the State cannot create a law to establish a religion or interfere with religious beliefs and opinions, regulating religious practices.  This renders the situation wherein the Free Exercise Clause allows the individual right to practice their faith without interference in religious belief. However, it might exercise limits on actual religious practices. Freedom of religion does not provide an impetus to perform actions against social norms or violate society’s good order.  

The tests for the same were that religious practice should not run afoul of a “public morals” or a “compelling” governmental interest. However, to identify whether the government is placing an undue burden onto the individual, it must be put to the test as to whether [A.] the person has a claim involving a sincere religious belief, and [B.] the government action places a substantial burden on the person’s ability to act on that belief.

[4.0] FREEDOM OF ASSEMBLY

The right to assembly is the right of the people to commune to collectively promote, pursue, and defend their collective or shared ideas. Rather than a subset of free speech and press, the right of peaceable assembly is necessary since it prevents the proscription of peaceful political action and upholds the individuals participating in the same rather than dismissing them as criminals. Consequently, gatherings in peaceful public protest – in marches, rallies, and other assemblies – is another core freedom guaranteed by the First Amendment. 

Like other rights, the right to assemble is not absolute. Restrictions may be imposed on the assembly regarding the time, place, and manner of execution within constitutional bounds. Still, the government is explicitly barred from prohibiting the assembly from happening altogether. Restrictions imposed by the government as justified insofar as they are judged without actually taking into account the content of the regulated speech  are narrowly tailored to “serve a significant governmental interest, and  also leave open ample alternative channels for communication of the information.” However, the restrictions on time, place, and manner usually occur by way of obtaining specific permits in advance to conduct the event, especially if the assemblies coincide with other major public events

Information provided about the assembly’s organizer and how it is likely to be conducted can also be asked without incurring the First Amendment. U.S.  courts permit regulations and ordinances requiring assembly organizers to obtain permits, licenses, or other forms of permission from the state or city before assembly.

It must be recollected that the exception to the First Amendment for the clear and present danger of riot, disorder, or interference with traffic on public streets, or other immediate threat to public safety or order is provided. Furthermore, the State is allowed to pass a statute that prevents assembly for the commission of illegal activities by the gatherers.  

[5.0] FREEDOM OF PETITION

The Petition Clause protects the right “to petition the government for a redress of grievances.” However, the right has grown through constitutional jurisprudence since it does not merely provide for the righting of a wrong but also provides a means to demand the government use its powers to better the interests of the public on politically contentious matters in a way that the general public is benefitted.  

It is easy enough to overlook the petition right. However, the nature of the petition freedom means that the people are guaranteed a way to demand relief be provided for injustice by way of litigation or redressive governmental action. Like the right of assembly, it allows for individuals to band together to demand change from the government. 

While effective change cannot be guaranteed, and since the importance of the petition is highly subjective in its ambit, it allows for the understanding of what matters are highlighted in the public interest and harnessing voting power in a manner to further the benefits for the public. The government, amongst the petitions received, is consequently empowered to resolve issues that might have been overlooked, understand the stance of the public on the policies that it might have formed as well, as ensure the above-board behavior of the government itself, allowing the voice of the people to be heard, 

Petitioning has evolved even in the mode of the term, encompassing every non-violent and legal manner of depicting the public’s opinion of government action, regardless of whether it is judicial, executive, or legislative. Lobbying, letter-writing, e-mail campaigns, testifying before tribunals, filing lawsuits, supporting referenda, collecting signatures for ballot initiatives, peaceful protests, and picketing are all public diction issues, grievances, and push-policies created to motivate government action. This is why the other First Amendment Rights are likely to overlap with the functioning of the right to petition. 

The First Amendment Is only applicable to government activity. It is also the only federal intervention that will tackle the first amendment’s usage and its reference to States through the 14th Constitutional amendment. The Bill of Rights safeguards individual autonomy from government official conduct. That is recognized as the doctrine of state action. Private property is not government-owned. Restrictions on individuals’ free-speech rights on private property do not involve state action.

For information on serving legal papers, click here or call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out a can a president pardon himself: presidential pardon rules Articles by clicking here.

Sources

1. The words of the First Amendment itself establish six rights: (1] the right to be free from the governmental establishment of religion(the “Establishment Clause”),(2) the right to be free from governmental interference with the practice of religion(the“free exercise Clause”),(3) the right to free speech, (4) the right to freedom of the press, (5) the right to assemble peacefully (which includes the right to associate freely with whomever one chooses), and (6) the right to petition the government for a redress of grievances.

2. Miller v. California (1973). Under the Miller test, a work is obscene if:

(a) … ‘the average person, applying contemporary community standards’ would find the work, as a whole, appeals to the prurient interest … (b) … the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) … the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.]

3. Ingredients for Defamation: 

  1. Actionable words, such as those imputing the injured party: is guilty of some offense, suffers from a contagious disease or psychological disorder, is unfit for public office because of moral failings or an inability to discharge his or her duties, or lacks integrity in profession, trade or business;
  2. That the charge must be false;
  3. That the charge must be articulated to a third person, verbally or in writing;
  4. That the words are not subject to legal protection, such as those uttered in Congress; and
  5. That the charge must be motivated by malice.

4. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)

5. In Leathers v. Medlock (1991), the Supreme Court found that states may treat different types of media differently

6. New York Times Co. v. Sullivan, 376 U.S. 254 (1964): it held that if a plaintiff in a defamation lawsuit is a public official or person running for public office, not only must he or she prove the normal elements of defamation—publication of a false, defamatory statement to a third party—he or she must also prove that the statement was made with “actual malice,” meaning that the defendant either knew the statement was false or recklessly disregarded whether or not it was true.

7. Hustler Magazine v. Falwell (1988)

8. Reynolds v. the United States (1878) the Supreme Court used these words to declare that “it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere [religious] opinion, but was left free to reach [only those religious] actions which violated social duties or subversive of good order.”

9. Court in Lemon v. Kurtzman, 403 U.S. 602 (1971

10. Gillette v. United States (1970),

11. Trinity Lutheran Church of Columbia, Inc. v. Comer (2017)

12. Employment Division v. Smith (1990),

13. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150–51 (1969)

14. Thomas v. Chi. Park Dist., 534 U.S. 316, 322 (2002)

CAN A PRESIDENT PARDON HIMSELF: PRESIDENTIAL PARDONS RULES

Presidential Seal

By: Akanksha A. Panicker

The President of the United States has the constitutional power to issue a federal pardon, which effectively sets aside the punishment in a federal crime. 

A federal pardon in the United States is the President of the United States’ action that completely sets aside the punishment for a federal crime. The President is the only individual thus empowered to take such measures. Clemency is one aspect of the presidential pardon, while the other is a commutation of punishment, revocation of fine or restitution, and remission of sentences.  

Under the Constitution, the President’s commutation authority applies to all federal criminal offenses. All petitions for presidential clemency for federal offenses are usually referred to the Office of the Attorney General of the United States and the Pardon Attorney Department of Justice for inquiry and review. Still, the President is entitled to circumvent the office even if it is done. Parole shall not take place if the recipient disapproves of the pardon.

The President’s pardon is restricted to federal offenses; the Constitution merely allows the President the capacity to pardon “[o]ffenses against the United States.” The offense that breaches state law, but not federal law, is a violation against the state rather than an offense against the United States

[1.0]  KEY TERMS TO REMEMBER

Clemency” is the common phrase used to define the President’s authority to extend leniency to people who have broken federal legislation.

A “commutation of the sentence” partly or eliminates the sentence to be fulfilled. It will not reverse the sentence, presume innocence, or erases any civil liability that may be placed by the conviction conditions. Commutation can refer to jail time or penalties for reimbursement or compensation. A commutation does not change an individual’s immigrant or citizenship status and does not prohibit their detention or expulsion from the United States; neither does it shield an individual from extradition sought by other governments.

Pardon” is a presidential act of recusing a person for a federal offense, which would be normally issued only if the alleged perpetrator has acknowledged liability for the conviction and has shown appropriate character for a substantial length of time preceding the arrest or completion of the penalty. Like a commutation, amnesty does not mean innocence. Pardon can also entail the dismissal of fines and restitution levied as part of the sentence. However, unlike a commutation, a pardon excludes all possible legal liabilities. In certain cases, pardon clears the formal basis for expulsion from the country. Under the Rules Governing Petitions for Executive Clemency, a person may not qualify for Presidential parole until at least five years after any jail term levied as part of their punishment has been completely completed.

The President and the U.S. Pardons Attorney

Although the Constitution provides practically no restriction on the President’s authority to offer clemency, imprisoned individuals who petition the President for clemency are expected to comply with a stringent collection of regulatory requirements. All petitions for Presidential clemency for federal crimes are submitted to the U.S. Office. Pardon Attorney at the Department of Justice. The Attorney General shall prepare a report to the President regarding every appeal for Executive clemency, including pardons, commutations of penalties, remissions of fines, and remissions. However, the President is not required to obey the advice of the Attorney for Pardon or to endorse them.

[2.0] SCOPE OF THE PRESIDENT’S POWER 

The true scope of the President’s power to pardon has not been sufficiently clarified. Pardons were used in presumptive cases, such as when President Gerald Ford pardoned Richard Nixon, who was not prosecuted under the law for any alleged offenses about the Watergate scandal. Still, the Supreme Court never decided on the validity of such pardons. There is a dispute about how the pardon power functions in cases concerning impediments to an impeachment, especially during the Trump administration. 

Federal pardon petitions are nominated to the President, who accepts or refuses the appeal. Normally, petitions for pardons are produced for consideration. Non-binding recommendation by the Office of the Attorney General of the United States Department of Justice and the Office of the Pardon Attorney,   The volume of pardons and allowances issued ranged from the government to government. However, it is observed that far fewer pardons have been issued since the Second World War.

A federal pardon can be issued before starting a legal case or inquiry before any indictments are issued, unspecified offenses, and before or after a federal criminal conviction. Bringing up Ford’s broad federal pardon of former President Richard M. Nixon in 1974 for “all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969, through August 9, 1974” is relevant again, exemplifying fixed-period federal pardon that came before any indictments being issued and that covered unspecified federal offenses that may or may not has been committed.

Procedure

The Justice Department normally requires that anyone filing a petition for a pardon wait five years after conviction or release before receiving a pardon. While clemency can be issued without submitting a formal appeal, in several instances, the Office of the Attorney General will entertain exclusively requests from people who have served their sentences and who have consistently shown their capacity to lead a decent standard of living for a substantial amount of time following incarceration or release from custody.

The Supreme Court ruled in United States v. Wilson (1833) that the convict could reject a pardon. In Burdick v. the United States (1915), the court specifically said: “Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected, preferring to be the victim of the law rather than its acknowledged transgressor, preferring death even to such certain infamy.” Commutations (reduction in a prison sentence), unlike pardons (restoration of civil rights after prison sentence had been served), may not be refused. In Biddle v. Perovich 274 U.S. 480 (1927), the commutation subject did not want to accept life in prison but wanted the death penalty restored. The Supreme Court said, “A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.”

[3.0] LIMITATIONS ON THE POWER OF PARDON

By the President’s order, federal pardons extend only to federal legislation, which does not apply to civil, state, or municipal crimes. Federal pardons also do not extend to instances of conviction. Pardons for state offenses shall be administered by the governors or the state pardon commission.

One restriction to the President’s authority to order commutations is in cases of impeachment. This means that the President cannot use a pardon to deter an official from being charged or reverse the consequences of an indictment and a conviction.

Several law scholars still analyze whether to recognize pardon is necessarily an admission of guilt. According to Associate Justice Joseph McKenna in the majority opinion held in the   Supreme Court case Burdick v. the United States, parole “carries an imputation of guilt; acceptance a confession of it; however, the federal courts are yet to make it clear if this logic relates to dead individuals (such as Henry Ossian Flipper, who was pardoned by Bill Clinton), those who are deprived of sentences as a result of general amnesty, and those whose sanctions are relieved through a commutation of the language, which is unable to be rejected   If the president believes that the individual is innocent and offers parole, then granting pardon does not mean that the individual is complicit.

While the President’s amnesty will restore the various rights that have been breached due to the pardoned offense and can, to a degree, relieve the prejudice of the conviction, it may not erase or expunge the record of the conviction. Thus the person who has been given the pardon must also reveal their record in some cases where that evidence is required, but the person must still declare that they were granted the pardon. Most of the substantive limitations associated with a federal criminal conviction, such as the deprivation of voting rights and to assume elected office, remain subject to state rule rather than a federal criminal conviction.

The moral and legislative right of the President to forgive himself (self-pardon) remains an outstanding issue. During the Watergate crisis, President Nixon’s counsel indicated that self-pardon would be legitimate. Simultaneously, the Department of Justice released a memorandum of agreement on 5 August 1974 claiming that the President should not forgive himself. The 1974 memo mapped out a situation in which, under the Twenty-fifth Amendment to the United States Constitution, the President could designate himself unfit to operate. The acting president could then pardon the president, and “thereafter, the president could either resign or resume the duties of his office.”

On July 22, 2017, President Donald Trump wrote, “While all agree the U.S. President has the complete power to pardon, why think of that when only crime so far is LEAKS against us. FAKE NEWS” sparking several news stories and online comments about the President’s willingness to pardon relatives, assistants, and perhaps even himself about the 2017 Special Counsel Probe, which ultimately concluded President Donald Trump could not be indicted at the time,

Arguments against self-pardon include constitutional themes of self-judgment and individual personality of meting out justice, the unjust existence of the President being above the rules, breaches of public confidence, the use of the term “grant” in the relevant provision (no one can grant anything to oneself), the concept of “pardon” (because one cannot grant forgiveness to oneself) and the inadequacy of other protections.

[4.0] KEY ASPECTS TO REMEMBER WHEN APPLYING FOR A PARDON

All requests, except those about military offenses, should be addressed to the Pardon Attorney’s Office.  To be accepted, the form must be filled in full and must be accurate and notarized. Additional pages and papers that amplify or justify the response to any query can be added to the petition. 

Under the Department’s regulations on discretionary clemency, applications the petitioner shall follow a reasonable holding time of five years before being able to request for Presidential parole for his criminal prosecution. The waiting time, which is intended to give the applicant a fair period of time to show the capacity to lead a responsible, positive and law-abiding life, starts on the day on which the petitioner is released from custody. Alternatively, where the crime ended in a punishment that did not include imprisonment, whether community or home confinement, the waiting period began on the sentencing day.

 The applicant could have completely met the sentence levied, including any probation, parole, or supervised release, before asking for clemency. The waiting time starts following discharge from prison regarding a most current arrest, whether or not this is the crime for which pardon is requested. One can make a written request to waive this condition, although the exclusion of some aspect of the waiting time is seldom given and usually under the most extraordinary cases. To obtain a waiver, it is necessary to complete the application form and apply it with a cover letter outlining why the waiting time should be waived in one’s situation.

If one has more than one federal conviction, the most current conviction should be displayed in the petition and the conviction’s completed aspect. For any such federal convictions, including those in military courts-martial, the details sought in the petition should be contained in the attachment. Any federal prosecutions that do not end in a sentence should be recorded in the room given for the previous and subsequent criminal record.

If one is demanding amnesty for a court-martial conviction only, they need to send the completed petition directly to the Secretary of the Military Department, who has the original jurisdiction for the same Pardon of a combat offense would not alter the essence of a military discharge. Upgrades or other military discharge adjustments can be rendered only through the intervention of the relevant military authority.

All additional convictions or allegations by any civilian or military law enforcement body, including any federal state, municipal or international authority, whether they have happened before or after the crime for which pardon is being sought, should be disclosed, with every infringement, including traffic offenses that culminated in detention or felony proceedings, such as driving under the influence. Failure to report,  whether or not it culminated in prosecution, can be viewed as a falsification of the petition. This list must also mention overdue credit commitments, whether or not they are contested, as well as civil cases in which one has been identified as a participant, whether as a plaintiff or a defendant, including insolvency proceedings. This also would include any outstanding tax liabilities, whether they be federal, state, or municipal.  At least three character affidavits must support the petition. Persons linked to the individual seeking parson by blood or marriage cannot be used as main characters.

Pardon authorities are required to conduct a very comprehensive analysis to assess a petitioner’s admissibility for relief. A  thorough investigation into the petitioner’s professional history and current activities is likely, considering the type, severity, and recentness of the crime, the petitioner’s cumulative criminal background, any particular difficulty that they might face as a consequence of the prosecution, and the nature and duration of their participation in community service or charitable or other praiseworthy activities following the conviction.

The failure to fully and accurately complete the application form may be construed as a falsification of the petition, which may provide a reason for denying the petition. The knowing and willful falsification of a document submitted to the government may subject the individual to criminal punishment, including up to five years’ imprisonment and a $250,000 fine.

For information on serving legal papers, click here or call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers by clicking here.

Sources

1.Article II, Section 2, Clause 1 of the U.S. Constitution: The President … shall have the power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

2.USDOJ: Office of the Pardon Attorney”. USDOJ. Archived from the original on January 5, 2015. Retrieved August 26, 2017

3.” Presidential Pardons – ABA Legal Fact Check – American Bar Association.” www.abalegalfactcheck.com.

4.”Pardon Information and Instructions.” www.justice.gov. January 12, 2015. Retrieved December 7th, 2020.

5. the United States v. Wilson, 32 U.S. (7 Pet.) 150 (1833)

6.Burdick v. the United States, 236 U.S. 79 (1915),

7.Lieutenant Henry Ossian Flipper, U.S. Army 1856–1940 Archived September 22, 2009, at the Wayback Machine. U.S. Army

8.Nytimes.com. 2020. Trump Says He Has ‘Complete Power’ To Pardon (Published 2017). [online] Available at: <https://www.nytimes.com/2017/07/22/us/politics/donald-trump-jeff-sessions.html> [Accessed 7 December 2020].

9.28 C.F.R. §§ 1.1 et seq

10.See 18 U.S.C. §§ 1001 and 3571

Sixth Amendment Right to Counsel

By: Undisputed Legal/Court Service Department

A. When Right Attaches 

1. The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” 

the a. State constitution, Const. Art. I, § 22, is co-extensive with the Sixth Amendment. See generally State v. Medlock, 86 Wn. App. 89, 97-935 P.2d 693, review denied, 133 Wn.2d 1012 (1997). 

2. The Sixth Amendment right to counsel does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. McNeil v. Wisconsin, 501 U.S. 171, 175, 115 L. Ed. 2d 158, 111 S. Ct. 2204 (1991). 

a. A defendant’s custodial status is irrelevant to determining whether the Sixth Amendment right to counsel has attached. 

  1. Once the Sixth Amendment right to counsel attaches, the police may not interrogate the suspect regarding the pending charges without Miranda’s waiver. Patterson v. Illinois, 487 U.S. 285, 108 S. Ct. 2389, 101 L. Ed. 2d 261 (1988).
  2. Once the Sixth Amendment right to counsel attaches, the police may not deliberately elicit statements from the accused in the absence of counsel. Fellers v. the United States, 540 U.S. 519, 124 S. Ct. 1019, 157 L. Ed. 2d 1016 (2004). 
    • Deliberate-elicitation standard is not the same as the Fifth Amendment custodial interrogation standard. Fellers, 124 S. Ct. at 1023.
    • Deliberate-elicitation will not be found if the government agent “made ‘no effort to stimulate conversations about the crime charged.’” Kuhlmann v. Wilson, 477 U.S. 436, 442, 106 S. Ct. 2616, 91 L. Ed. 2d 364 (1986) (quoting United States v. Henry, 447 U.S. 264, 271 n.9, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980)).
      Case law indicates that statements were deliberately elicited in the following circumstances:

• Officers went to the defendant’s house, knocked on the door, identified themselves when the defendant answered the door, and asked if they could enter the house. Defendant allowed them in. Officers then told the defendant they had come to discuss his involvement in methamphetamine distribution and that a grand jury had indicted the defendant for conspiracy to distribute methamphetamine. Officers describing the defendant the names of the other individuals named in the indictment were held to have been designed to elicit an acknowledgment from the defendant that he knew the other individuals. Fellers v. the United States, 540 U.S. 519, 124 S. Ct. 1019, 157 L. Ed. 2d 1016 (2004).

  • At least one court has held that officers do not deliberately elicit statements when they merely tell the defendant that they are there to serve an indictment and take him into custody. In this case, the officers did not indicate to the defendant that they were there to “discuss” anything with him, and when the defendant started to speak, the officers told him to be quiet while they read him his Miranda warnings. The officers also advised the defendant not to speak to them and reminded him that he had an attorney. See Commonwealth v. Torres, 442 Mass. 554, 813 N.E.2d 1261, 1277-78 (2004). See also Torres v. Dennehy, 615 F.3d 1 (1st Cor. 2010), cert. Denied, 131 S. Ct. 1038 (2011) (the troopers did not “deliberately elicit” information from him when visiting him in jail to read him the indictment).
  • Placement of an undercover informant, who was paid on a contingency fee basis and to whom the government mentioned the defendant’s name, in the same cell block as the indicted defendant constitutes the type of affirmative steps that violate the deliberate-elicitation test. United States v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980).
  • A probation officer’s request that the defendant tells her his version of the offense during a presentence investigation interview constituted “deliberate elicitation.” State v. Everybody talks about, 161 Wn.2d 702, 166 P.3d 693 (2007).
  • Tour of the area of the crime scene with the defendant after he had invoked his Sixth Amendment right to counsel was attempting to elicit an incriminating statement deliberately. Commonwealth v. Cornelius, 2004 PA Super 255, 856 A.2d 62 (Pa. Super. 2004).

5. Incriminating statements obtained by “luck or happenstance” after the right to counsel has attached do not violate the Sixth Amendment. Maine v. Moulton, 474 U.S. 159, 176, 106 S. Ct. 477, 88 L. Ed. 2d 481 (1985). 

• Recording telephone conversations the detained defendant made to his parents and the use of those recordings at trial did not violate the defendant’s Sixth Amendment right to counsel as neither parent agreed to work with the government to elicit information, and the defendant was clearly informed that his conversations could be recorded. State v. Haq, 166 Wn. App. 221, 268 P.3d 997 (2012).

6. The Sixth Amendment right to counsel generally ends with the dismissal of charges. An exception may apply if the original charges’ release was a deliberate effort by government representatives to circumvent the accused’s Sixth Amendment rights. See, e.g., the United States v. Montgomery, 262 F.3d 233, 246-47 (4th Cor. 2001), cert. Denied, 534 U.S. 1034, 122 S. Ct. 576, 151 L. Ed. 2d 448 (2001) (“most courts to consider the question have refused to hold that ‘once a defendant has been charged,’ even after those charges are dismissed, the police and their agents are barred from questioning him “about the subject matter of those charges unless his counsel is present.”); State ex rel. Sims v. Perry, 204 W. Va. 625, 515 S.E.2d 582, 584 (W. Va. 1999); Lindsey v. the United States, 911 A.2d 824 (D.C. App. 2006). 

B. Charge Specific Right 

1. The Sixth Amendment right to counsel is offense-specific. It cannot be invoked once for all future prosecutions. McNeil v. Wisconsin, 501 U.S. 171, 175, 115 L. Ed. 2d 158, 111 S. Ct. 2204 (1991); State v. Stewart, 113 Wn.2d 462, 780 P.2d 844 (1989), cert. denied, 494 U.S. 1020 (1990). 

  • Thus an individual who has been charged with robbery may be contacted by police and interrogated about unrelated burglaries. State v. Stewart, supra.
  • “Unrelated crimes” in the Sixth Amendment context means those crimes that do not satisfy the Blockburger double jeopardy test. Texas v. Cobb, 121 S. Ct. at 1343.

i. Two statutes satisfy the Blockburger test if proof that the defendant violated one rule would establish a violation of the other law. Blockburger v. the United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). 

2. A defendant’s statements regarding offenses for which he had not been charged are admissible notwithstanding the attachment of his Sixth Amendment right to counsel on other charged offenses. 

a. Even though the right to counsel under the Sixth Amendment does not attach to uncharged offenses, suspects retain the ability, under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), to refuse any police questioning concerning uncharged offenses. 

C. Waiver of Right 

  1. The Sixth Amendment right to counsel is no greater than the Fifth Amendment right to counsel that existed before charges are formally filed. State v. Visitacion, 55 Wn. App. 166, 170, 776 P.2d 986 (1989) (citing Patterson v. Illinois, 487 U.S. 285, 101 L. Ed. 2d 261, 108 S. Ct. 2389, 2397 (1988)).
  2. A defendant can waive the Sixth Amendment right to counsel if he so chooses. The waiver will be upheld if the State can show that the defendant knowingly, voluntarily, and intelligently waived his right to counsel. Visitacion, 55 Wn. App. at 170 (citing Brewer v. Williams, 430 U.S. 387, 404, 51 L. Ed. 2d 424, 97 S. Ct. 1232 (1977); Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 58 S. Ct. 1019, 146 A.L.R. 357 (1938).

a. A child younger than 12 years of age cannot waive his or her Sixth Amendment rights. See RCW 13.40.140(10). The child’s parent, guardian, or custodian must waive the child’s Sixth Amendment rights for a confession to be admissible. 

  1. If both parents are present, get a waiver from both parents.
  2. If the parents waive the child’s Sixth Amendment rights, but the child does not wish to speak to the officer, any confession will probably be ruled inadmissible.
  3. For older children, the presence of the child’s parents and whether the child’s parents concurred in the waiver of the Sixth Amendment right to counsel are factors to be considered in the “totality of the circumstances.” Dutil v. State, 93 Wn.2d 84, 93, 606 P.2d 269 (1980).

3. Miranda warnings are adequate to advise an individual of his or her post-indictment Sixth Amendment right to counsel. Patterson v. Illinois, 487 U.S. 285, 101 L. Ed. 2d 261, 108 S. Ct. 2389, 2398 (1988); Visitacion, 55 Wn. App. at 170-71. 

a. Because it is straightforward for an officer to say something that a court may later determine was designed to elicit an incriminating statement deliberately, officers are encouraged to read Miranda warnings to anyone who is arrested under a warrant as early into the contact as possible, regardless of whether the officer intends to interrogate the suspect. 

4. The Sixth Amendment right to counsel in a criminal case belongs to the defendant, not the attorney. Therefore, a defendant’s attorney cannot prohibit law enforcement from responding to a defendant’s request for contact. See, e.g., State v. Petitclerc, 53 Wn. App. 419, 425, 768 P.2d 516 (1989) (defense attorney’s notice of appearance, which contained a request that no law enforcement officials question the defendant without his attorney being present did not make it inappropriate for law enforcement officials to contact the defendant or preclude the defendant from choosing to ignore his attorney’s advice and choose to talk to law enforcement officials). When a defendant initiates contact with the police, the responding officer should administer Miranda warnings before speaking with the defendant.

a. While police officers may speak with a represented defendant if the defendant initiates contact, prosecutors may not. See RPC 4.2, the United States v. Jamil, 546 F. Supp. 646, 652 (E.D. NY. 1982), rev’d on other grounds, 707 F.2d 638 (2nd Cor. 1983) (“[t]here is unanimous and fully documented authority for the proposition that prosecutors are no less subject to the prohibition against communication with a represented person than are members of the private bar.”); State v. Morgan, 231 Kan. 472, 646 P.2d 1064, 1070 (1982) (“The prosecutor is a lawyer first; a law enforcement officer second. The provisions of the Code of Professional Responsibility are as applicable to him as they are to all lawyers.”); but see State v. Nicholson, 77 Wn.2d 415, 463 P.2d 633 (1969) (former ethics Cannon 9 only applies to civil cases and does not apply to prosecutors). 

The focus of RPC 4.2 is on the obligation of attorneys to respect the relationship of the adverse party and the party’s attorney. See the United States v. Lopez, 4 F.3d 1455, 1462 (9th Cor. 1993). The right belongs to the party’s attorney, not the party. The party cannot waive the no-contact rule application — only the party’s attorney can waive the attorney’s right to be present during a communication between the attorney’s client and opposing counsel. Id.; State v. Miller, 600 N.W.2d 457, 464 (Minn. 1999). The fact that a defendant initiated contact does not excuse a prosecutor from adherence to RPC 4.2. See State v. Ford, 793 P.2d 397, 400 (Utah App. 1990); People v. Green, 405 Mich. 273, 274 N.W.2d 448, 453 (1979). 

A prosecutor may not order a police officer to do what the prosecutor may not do. See RPC 5.3(c)(1); State v. Miller, 600 N.W.2d 457, 464 (1999) (prosecutors will be responsible for a police officer’s contact with a represented individual if the prosecutor “orders or, with knowledge of the specific conduct, ratifies the conduct involved.”). 

i. A violation of RPC 4.2 may subject a prosecuting attorney to discipline by the bar. See, e.g., People v. Green, 405 Mich. 273, 274 N.W.2d 448, 454-455 (1979). 

ii.Statements obtained in violation of RPC 4.2 may be suppressed. See, e.g., United States v. Hammad, 858 F.2d 834, 840-41 (2nd Cor. 1988); State v. Miller, 600 N.W.2d 457, 467-68 (Minn. 1999); contra State v. Nicholson, 77 Wn.2d 415, 419, 463 P.2d 633 (1969); State v. Morgan, 231 Kan. 472, 646 P.2d 1064, 1070 (1982) (suppression is never a remedy for a violation of RPC 4.2); People v. Green, 405 Mich. 273, 274 N.W.2d 448, 454-455 (1979) (suppression is never a remedy for a violation of RPC 4.2). 

5. An attorney’s appointment at first appearance or arraignment does not bar an officer from contacting a defendant for an interview. However, the officer must immediately tender Miranda warnings and obtain a voluntary waiver of the defendant’s right to remain silent and the right to have an attorney present for the interview. Montejo v. Louisiana, ___ U.S. ___, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009). 

For information on serving legal papers, click here or call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers by clicking here.