No. of Recommendations: 6
Neither the Executive nor the Judiciary get to subject a Congressbeing's reason or motive for casting a vote to any test to assess whether it was the "wrong" reason or motive.
But we're not talking about votes here. We're talking about the motivation for a potentially criminal act. If you can't introduce evidence of mens rea, you can't prove a lot of criminal acts, particularly conspiracy, which often hinges on mens rea. A lot of potentially criminal acts by a president will be crimes of conspiracy.
Let's take a less crazy situation. You've got a presidential act that is clearly outside of the core constitutional duties. How about bestowing some presidential medal in exchange for a payment.** There's a presumption of immunity, but that presumption can be overcome. To overcome it, you probably need to prove there was a high likelihood of a criminal act with criminal intent. If you can't introduce evidence from the cabinet and other advisors, how can you overcome the presumption? There will be very little evidence outside of that group. I agree that once you overcome the assumption you can use the evidence to prove criminality. But you've got to get past the assumption first.
It just seems to me that while this presumption of immunity looks good on paper, once you remove the ability to introduce evidence from the president's advisors, you make overcoming the assumption virtually impossible. And that puts just about everything a president does above the law.
--Peter
**No, not even Trump is dumb enough to have the payment go directly to him, creating a paper trail outside of the White House. Make the payment a campaign donation. Or the rental of a suite in a hotel the president owns. Something like that. And yes, the one making the payment will absolutely stand on the 5th amendment, so you're not getting any information from him. (As well he should, because he's committing a criminal act, too, without the benefit of immunity.)
