Posted on 08/23/2023 8:46:13 AM PDT by Heartlander
Article II, Section 1 of the Constitution reads “[t]he executive Power shall be vested in a President of the United States of America.” Therefore, President Donald Trump had executive power vested in him through his presidential office. From that power flows certain privileges and indeed executive immunities. Among these privileges are those expressly delineated in the Constitution itself. The impeachment process, for example, as stated in Article II, Sec. 4, requires that for all “high Crimes and Misdemeanors,” the president “shall be removed from Office.”
In other words, the Constitution lays out a process by which presidents of the United States are to be prosecuted—through impeachment. The reason impeachment, rather than traditional prosecution (and attendant punishments like incarceration), applies to the president is because of the uniqueness of the office itself. The president exposes himself to outsized publicity, controversy, and risk as a result of his office. Therefore, the punitive measures that uniquely attach to the executive officeholder are consonant with the duties and powers of the office itself. In addition, there is a special constitutional prerogative, one might say, in safeguarding the integrity of the presidential office, no matter the character and fitness of its occupant. Specifically, that would mean not imprisoning the officeholder or former occupants of the office based on alleged criminality done within the officeholder’s official capacities as president. It is for this reason that the Department of Justice has confirmed, “to wound [the President] by a criminal proceeding is to hamstring the operation of the whole governmental apparatus, both in foreign and domestic affairs.” (Memorandum from Robert G. Dixon, Jr., Asst. Att’y Gen., O.L.C., Re: Amenability of the President, Vice President, and Other Civil Officers to Federal Criminal Prosecution While in Office 30 [Sept. 24, 1973]). How far-reaching the scope of those capacities cover while in office should give way to a liberal construction due to the catastrophic impact such charges would necessarily have on the political fabric of the country.
In any event, and for the purposes of what is relevant in Jack Smith’s two indictments, the factual grounds on which President Trump allegedly committed crime(s) within his official duties as president have already been twice considered by the House of Representatives, for which the president—in conformance with Article II, Sec. 4—was acquitted both times by the Senate. Because the Senate voted not to convict President Trump of his alleged crimes, any and every remedial measure afforded by the constitutional process has already been exhausted. Therefore, to continue to bring charges against the president for the asserted crimes on which he has already been prosecuted is by definition an abuse of the judicial power and an expressed violation of the Double Jeopardy Clause of the Fifth Amendment: “…nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb…”
Notably, the Impeachment Judgment Clause of the Constitution, Article I, Sec. 3, reads as follows: “a person convicted upon an Impeachment, shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.” A plain reading of the clause allows for the subsequent indictment after a person is convicted—and convicted only. This is in agreement with the longstanding judicial canon of construction expressio unius est exclusio alterius, “the expression of one is the exclusion of others,” which provides that because the text excludes the term “acquittal” from the relevant clause, the framers’ intent was that only convicted officeholders would be open to additional prosecution, and not officeholders that were already acquitted based on constitutional procedure for their alleged crimes, therefore exhausting the constitutional remedy in toto. United States v. Wells Fargo Bank, 485 U.S. 351, 357 (1988).
This construction is likewise supported by common sense: any officeholder who is convicted while in office, based on constitutional procedure, is necessarily removed from office—it is inconceivable that any officeholder would remain in office after being convicted of a crime. But the reason a post-conviction prosecution, as opposed to an acquittal, runs a lesser risk of being in violation of double jeopardy, and is therefore expressly licensed by Article I, Sec. 3, is because, upon removal from office, there is a natural continuity in the prosecutorial function—indeed, additional time may be required to prosecute the case to the fullest extent of the law. The conviction, pursuant to constitutional procedure, is just the first step of the criminal trial. In contrast, if an officeholder were acquitted for an alleged crime and served the remainder of his or her term in office, it would not make sense to resume a criminal trial based largely on the same factual grounds on which the acquittal was based, once the acquitted officeholder left his or her post—in particular, after some time elapsed in which the officeholder was acquitted, served out the duration of his or her term, and then became a private citizen—only then to resume the criminal trial for which that officeholder had been acquitted. The latter scenario poses an obvious risk to double jeopardy (and flies in the face of common sense).
While the question is still occasionally debated, there is a great deal of support for the latter view in several important early legal commentaries and court decisions. For example, St. George Tucker, an editor of Blackstone’s Commentaries, raises the strong possibility that because “a conviction upon an impeachment is no bar to a prosecution upon an indictment, so perhaps, an acquittal may not be a bar.” (1 St. George Tucker, Blackstone’s Commentaries 337 & n* [Philadelphia, William Y Burch et al. 1803, reprint 1996]). Even stronger authority for this view is found in Justice Story’s 1833 Commentaries on the Constitution, wherein he expresses his conviction in the above stated construction of double jeopardy: “In case of an acquittal,” he wrote, “there cannot be another trial of the party for the same offence in the common tribunals of justice.” (2 Story’s Commentaries). This point of view agrees with other state charters that predate the federal Constitution, but nevertheless provided interpretative guidance, such as the 1784 New Hampshire Constitution, which contained the first bill of rights to explicitly adopt a double jeopardy clause. Within the New Hampshire Constitution’s double jeopardy clause, acquittal—which extended to acquittal by the Senate—is accounted for: “No subject shall be liable to be tried, after an acquittal, for the same crime or offence.” Art. I, Sec. XCI, 4 F. Thorpe, The Federal and State Constitutions, reprinted in H.R. Doc. No. 357, 59th Congress, 2d Sess. 2455 (1909).
More recently, an OLC memo from 2000 acknowledges that an acquittal by constitutional impeachment exhausts every single legal remedy for redressability, and therefore, to subsequently bring charges against that officeholder runs in flagrant violation of double jeopardy. On this theory, the OLC memo conceded: “Even if one took the view that the Impeachment Judgment Clause’s reference to ‘the party convicted’ implied that acquitted parties could not be criminally prosecuted, that implication would naturally extend only to individuals who had been impeached by the House and acquitted by the Senate.” (“Whether a Former President May Be Indicted and Tried for the Same Offense for Which He Was Impeached by the House and Acquitted by the Senate,” 24 Op. O.L.C. 110, 112 n.2 [2000]).
The Supreme Court has affirmed “the Double Jeopardy Clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense.” Helvering v. Mitchell, 303 U.S. 391, 399 (1938). Because the president has already been prosecuted—twice—for the asserted crimes underlying both of Jack Smith’s indictments, the legal remedy has already been applied: there is simply no other form of legal redress that is tolerable under the Constitution.
In conclusion, Jack Smith’s claims are ill founded; to the extent they have any merit at all, they have already been prosecuted to the fullest extent the Constitution allows, and on each count, President Trump has already been acquitted of any and all criminal wrongdoing.
Doesn’t matter. The would simply charge Trump with something else or keep it the same and say, “So what, we’re putting him in jail regardless”.
This will be done, it’s part of the dimocrats plan.
Many will state that Impeachment is a political process so therefore double jeopardy doesn't apply due to it now is a criminal process and a case can be made by referring to Federalist #69 where Hamilton speaks on an impeached and convicted (by the Senate) President being removed from office and tried criminally in the usual manner.
One of the issues that I have with stating that Impeachment is a solely a political process and that a President can be impeached for any reason flies in the face of the regular reading of the Constitution. It is for Treason, High Crimes and Misdemeanors. And no, misdemeanors doesn't mean bad behavior because at the time of the common usage in the legal sense it is a crime that is not a felony. The Constitution is a legal document.
Prof Dershowitz made a great point of stating that it is incredibly hard to impeach AND remove a sitting president even for Treason as you need 2/3 of the Senate to convict. This tells us that the framers were very concerned with the process being abused by politics. He also made the point on Bannon that individual states don't have the right to unilaterally ban someone from the ballot because they "beleive" the candidate committed some crime or whatnot.
I hold McConnell responsible for this.
I would think it’s because one is federal, the other is state. I’ve seen cases where the defendant was acquitted on state charges and the federal came in and charged them again.
Double jeopardy does not apply. An impeachment is not a criminal trial. Just like you can be tried criminally and sued civilly for the same acts, even if acquitted (think OJ Simpson), you can be impeached and tried criminally for the same acts, even if not convicted by the Senate and removed from office. Double jeopardy applies to jeopardy of criminal punishment. Even if convicted in an impeachment, there is no criminal penalty attached - only removal from office and possibly being barred from holding office again.
IANAL, but sounds reasonable.
Turtle and Pence, plus minority house leader at the time.
Exactly!!!
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“I’ve seen cases where the defendant was acquitted on state charges and the federal came in and charged them again.”
Not for the same charge though. For example, OJ Simpson was prosecuted and acquitted by the state for homicide, but prosecuted and convicted by the feds for depriving the victims of their civil rights, not for homicide (even though homicide was the means by which he deprived them of those rights).
Certainly that still smells a bit like “double jeopardy” but prosecutors are usually careful to give themselves that little wiggle room.
Maybe it applies, maybe it doesn’t. I’ll let the courts figure that out.
What is not in question at all is that Trump can claim Presidential immunity from prosecution for all the acts in the Georgia indictment.
Mental gymnastics
Nice try though...
Impeachment is a political act. It is used to removed a government official from their office. Usually because it is felt they committed a crime. An impeachment cannot fine or imprison anyone. They simply are removed from office.
In the cast of a President, Impeachment and removal would then open the person too prosecution for the alleged crime.
This is happening in Criminal Court.
The two sound the same and use similar processes. But...they have nothing to do with each other aside from clearing a path for prosecution of an executive.
The problem I see is we have 3100+ counties with DAs and 50 states with attorney generals all who could bring a case against a former president.
The National Constitutional Law Union says it is improper to prosecute Mr. Trump under these indictments, given that Bruen and Dobbs mandate that all constitutional provisions be applied in accordance with their fixed meaning in 1787-1789.
Todd J. Aldinger says the Supreme Court’s recent Dobbs and Bruen decisions allow for Trump and his lawyers to argue that all actions a president takes while in office must be considered legal unless the chief executive is successfully impeached and removed. Trump was impeached and acquitted twice.
Very nice. Bookmark.
In conclusion, Jack Smith’s claims are ill founded; to the extent they have any merit at all, they have already been prosecuted to the fullest extent the Constitution allows, and on each count, President Trump has already been acquitted of any and all criminal wrongdoing.
All criminal trials are subject to a constitutional provision which guarantees the accused a trial by a jury of his peers. An impeachment fails the jury requirement and cannot be considered a criminal trial, nor can its result be considered a criminal acquittal or conviction of a criminal offense.
An impeachment proceeding is quite analagous to a deportation proceeding in court before a judge. It does not feature a jury, but does not violate due process because it is in no way a criminal trial subjecting the accused to any criminal penalty.
Fong Yue Ting v. United States, 149 U.S. 698, 730 (1893)
The proceeding before a United States judge, as provided for in section 6 of the act of 1892, is in no proper sense a trial and sentence for a crime or offence. It is simply the ascertainment, by appropriate and lawful means, of the fact whether the conditions exist upon which Congress has enacted that an alien of this class may remain within the country. The order of deportation is not a punishment for crime. It is not a banishment, in the sense in which that word is often applied to the expulsion of a citizen from his country by way of punishment. It is but a method of enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which the government of the nation, acting within its constitutional authority and through the proper departments, has determined that his continuing to reside here shall depend. He has not, therefore, been deprived of life, liberty or property, without due process of law, and the provisions of the Constitution, securing the right of trial by jury, and prohibiting unreasonable searches and seizures, and cruel and unusual punishments, have no application.
Charles L. Black, Jr., and Phillip Bobbit, Impeachment, A Handbook, New Edition, Yale University Press, 1974, 2018
Bobbitt at 119:
Unlike criminal proceedings, which are designed to treat all defendants alike regardless of their station, impeachment is not a criminal proceeding—that's why double jeopardy doesn't forbid the subsequent trial of an impeached official.
Charles L. Black, Jr. at 36:
Now this has been a long pull, but we have our hands on a good first approximation to a rational definition of an impeachable "high Crime or Misdemeanor." Omitting qualifications, and recognizing that the definition is only an approximation, I think we can say that "high Crimes and Misdemeanors," in the constitutional sense, ought to be held to be those offenses which are rather obviously wrong, whether or not "criminal," and which so seriously threaten the order of political society and to make pestilent and dangerous the continuance in power of their perpetrator. The fact that such an act is also criminal helps, even if it is not essential, because a general societal view of wrongness, and sometimes of seriousness, in such a case, publicly and authoritatively recorded.The phrase "high Crimes and Misdemeanors" carries another connotation—that of distinctness of offense. It seems that a charge of high crime or high misdemeanor ought to be a chare of a definite act or acts, each of which in itself satisfies the above requirements, General lowness and shabbinessought not to be enough. The people take some chances when they elect a man to the presidency, and I think this is one of them.
While on the topic of the relations between criminality and impeachability, let me remind the reader that the president, like everybody else, is generally bound by the criminal law. If something the has done is both a crime and an impeachable offense, then, by express constitutional provision, he may, after removal, be tried again in the ordinary courts, and punished; this provision was put in to avoid any possible plea of "double jeopardy."
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