{F} ormer president Trump’s lawyers argue that he is immune from criminal prosecution for official acts taken as president. Of the several theories they advance for this proposition, I have maintained that the weakest is the one they rely on as if it were their strongest. Toward the end of oral argument Tuesday morning, D.C. Circuit judge Florence Y. Pan illustrated the folly of Trump’s position. Pan is one of three circuit judges on the panel that is considering Trump’s appeal of District Judge Tanya Chutkan’s ruling that he lacks immunity.
As argued vigorously — if not very persuasively — by D. John Sauer, the Trump team posits that the Constitution creates presidential immunity from prosecution that is akin to double jeopardy. The defense argument rests on one of the Constitution’s impeachment clauses (art. I, §3, cl. 7), which provides:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to law. [Emphasis added.]
The thrust of this clause is twofold.
First, in the event a president is convicted by the Senate, the clause limits the authority of Congress, the Article I political branch, to the stripping of political power — i.e., Congress may not impose criminal penalties, such as fines and incarceration, which are the purview of the nonpolitical judicial branch.
Second, the clause makes plain that the congressional penalty imposed in the impeachment case has no double-jeopardy effect — i.e., criminal prosecution is not precluded. This is the salient point for our purposes because, paradoxically, Trump contends that the clause — implicitly — provides double-jeopardy protection.
How so? Team Trump seizes on the word convicted, or, more precisely, on what they take to be the clause’s telling omission of the word acquitted. This, of course, is because Trump was acquitted in the 2021 Senate impeachment trial of the House’s “incitement of insurrection” article of impeachment.
It should be obvious that the above impeachment clause does not mention acquittal because its purport was to address the ramifications of conviction (just as, for example, penal statutes, in prescribing penalties, do not mention acquittal because the penalties apply only to defendants who have been convicted). Trump, however, theorizes that acquittal was not mentioned because the Framers, sub silentio, were undertaking to create double-jeopardy protection for officeholders who were acquitted at impeachment trials.
This is specious in several ways.
To begin with, double jeopardy does not distinguish between conviction and acquittal. The rationale of the doctrine is that a person should not be put through the cost and anxiety of a second trial regardless of the first trial’s outcome. Moreover, double jeopardy is a narrow criminal-law safeguard, precluding a successive criminal prosecution in court if a criminal defendant has already been tried in court on the same exact charge by the same exact sovereign. Hence, there is no double-jeopardy immunity against, say, (a) civil lawsuits arising out of the same facts litigated in a prior criminal case (e.g., O. J. Simpson’s being found civilly liable for wrongful death after being acquitted in a criminal murder trial); (b) successive criminal prosecutions based on different charges even if arising out of the same facts (e.g., a person convicted or acquitted of bank robbery has no double-jeopardy protection against a later prosecution for conspiracy to commit bank robbery); or (c) a successive criminal prosecution on the same exact charge brought by a different sovereign (e.g., a person convicted or acquitted of selling cocaine in a case brought by the state of New York may be successively prosecuted for the same cocaine sale by the Justice Department because the states and the federal government are separate sovereigns).
By contrast, impeachment is not even a judicial proceeding, much less a criminal case. It is a political process. Impeachment involves a privilege (an office vested by the public with political power), not a right (such as liberty and property that are at stake in criminal cases — or even life, which is at stake in capital prosecutions). Impeachment relates solely to an official’s removal from public office by Congress, not to statutory penalties imposed by judges.
Patently, impeachment has no double-jeopardy effect whatsoever. Again, compare criminal prosecution in court and the political impeachment process. In the former, the Constitution requires a formal allegation of a crime (i.e., a grand-jury indictment); the latter does not require that a crime be alleged at all. To the contrary, the essence of impeachment is the abuse of public authority, not the commission of private wrongs.
The constitutional significance of impeachable offenses — treason, bribery, or high crimes and misdemeanors — is that they violate the trust the public vests in presidents and other high officials. Whether the impeachable conduct also happens to violate the criminal law is beside the point. Nevertheless, because it’s possible — even usual — for impeachable conduct to constitute criminal conduct, the Framers prudently, in the above impeachment clause, clarified that a political judgment of impeachment had no preclusive effect against judicial criminal (or civil) proceedings based on the same underlying conduct.
Yet, Trump’s immunity claim is premised on the notion that because the Senate acquitted him, rather than convicted him, the acquittal provides him with the double-jeopardy protection that the impeachment clause expressly bars if the Senate convicts.
Judge Pan leapt on the logic of Team Trump’s position: She pressed Sauer on whether the defense was saying that the prosecution of the former president would be proper if he had been convicted, rather than acquitted, by the Senate. After much hemming and hawing about various other problems with special counsel Jack Smith’s election-interference case, Sauer finally conceded that, yes, if Trump had been convicted, then a subsequent criminal prosecution arising out of the same underlying facts would be permissible.
From the standpoint of double jeopardy, this makes no sense.
The House impeached Trump on an article (or allegation) of inciting insurrection. In marked contrast, Smith has not indicted Trump for either incitement or insurrection; rather, the charges in the election-interference indictment are fraud on the United States, obstruction of Congress, and deprivation of civil rights (the attempt to convince the federal and state governments to invalidate votes). That is to say, every allegation in the criminal prosecution in court is different from the allegation in the impeachment proceeding. Even if we conceded for argument’s sake that the double-jeopardy doctrine was somehow relevant, an allegation of incitement and/or insurrection would not bar prosecution on charges of fraud, obstruction, and civil-rights violations. Why then would the propriety of Trump’s prosecution in court for crimes arising out of the events between Election Day 2020 and the Capitol riot in any way hinge on whether he’d been convicted by the Senate for a different offense?
Symmetrically, since the offenses in the impeachment article and the indictment are starkly different, what difference should it make that the Senate acquitted Trump? Even if the Senate impeachment trial (a political proceeding) were not completely different in nature from the criminal trial in court (a judicial proceeding), why would the propriety of the criminal trial depend on whether the Senate acquitted, as opposed to convicted, Trump in an impeachment trial regarding a different offense?
Trump’s impeachment-clause argument is unpersuasive. Again, the clause does not mention acquittal because it was designed to address the penalties for conviction, not because the Framers were trying to draw a distinction between conviction and acquittal — there would be no need for that because, as everyone knows, acquittal doesn’t have penalties. The clause is meant to foreclose a double-jeopardy claim, not create one.
So why does Trump rely on it? Because (a) it enables him to posit an argument that is based, however unpersuasively, on the text of the Constitution, and (b) for public-relations purposes, it allows him to stress the acquittal (while hoping you don’t notice that the acquittal vote was 43-57 — i.e., the margin was lopsidedly in favor of conviction, but Trump was saved by the Constitution’s daunting two-thirds’ supermajority requirement for conviction, which would have required 67 votes).
This is not to say Trump is without a colorable immunity argument. As I’ve contended, the same rationale that drove the Supreme Court to recognize immunity for official presidential acts in the civil context in Nixon v. Fitzgerald (1982) would support immunity in the criminal context, to wit: It would harm the country if, in exercising executive power, the president made decisions based on what was least likely to get him hauled into court by political rivals and dissenters, rather than what was best for national security. Despite what assistant special counsel James I. Pearce argued to the Circuit panel on behalf of Smith’s prosecution, we are now in an age of politicized prosecutions. It cannot be blithely assumed that prosecutors will enforce the law objectively, in the absence of partisanship, because there is too much evidence to the contrary.
Unfortunately for Trump, there is nothing explicit about immunity in the Constitution, and the Supreme Court has never before extended to the criminal realm the immunity that Fitzgerald deduced to be applicable in the civil realm. Therefore, Trump would need the Court to get creative to rule in his favor. But a conservative-leaning Court — such as the current one, which is very different from the Fitzgerald Court — frowns on judicial creativity. Today’s more originalist, textualist Court is apt to say that where the Constitution is silent, creativity is the province of Congress, not of unelected judges.
The high court’s default position is that if one is claiming a constitutional right or privilege, it must be rooted in the text of the Constitution. Thus are Trump’s lawyers straining to find a clause that could be their peg. Suffice it to say that the impeachment clause does not serve the purpose.