In a prior post, I wrote that in evaluating election law provisions, including qualifications, we should allow ties go to the runner, expand the democracy, allow the contested candidate to compete, and allow the voters to decide. I stand behind all of that. But in a conflict, should there be a conflict, between a criminal prosecution and an election, we have two competing principles: one, protecting the democratic process from wrongful manipulation by prosecutors and courts, and two, the rule of law, applying the criminal law without fear or favor to all, even against those who are politically connected. I certainly do not want prosecutors and courts pre-empting the voters in elections. But I also do not want a candidate’s participation in an election to amount to immunity in regard to established law, particularly where other (less fortunate) people have faced similar sanctions for similar conduct. This is a genuine conflict, it is not one which I have opined on in the past, and there are no easy solutions.
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I know that my merely raising the legal issues which are likely to arise from a Clinton indictment or impeachment does not interfere with either democracy or “letting the voters decide.” Quite the opposite. Voters who have been fully informed about the legal jeopardy Senator Clinton may or may not face under Section 2071 exercise their voting rights in a more meaningful fashion than they otherwise would. If you do not agree with that, then tell me why?
There is much more of interest in Seth’s new post.