Posted on 08/24/2023 9:57:25 PM PDT by SeekAndFind
The following article is an excerpt from a series offering a comprehensive legal analysis discussing the second Jack Smith indictment against President Donald Trump.
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, Art. 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 Justice Story 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 CONSTITUTION, 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.
A slightly modified version of this piece was originally published in The American Mind, and can be found here.
Paul Ingrassia is a Law Clerk at The McBride Law Firm, PLLC. He graduated from Cornell Law School in 2022 and is on the Board of Advisors of the New York Young Republican Club. He was also a two-time Claremont Fellow.
The Constitution is in their crosshairs.
Our country has been hijacked by radical left communists.
How did the orwellien deepstate become so powerful?
The answer is U.S.I.S.
Under Clinton the duties of federal applicant background checks was outsourced to a shell corporation known as United States Investigative Services. Prior to that the federal government processed the background checks of applicants under the oversight of OBM, office and budget management.
Eventually a whistleblower came forward to expose a scheme within usis to not only commit fraudulent fabricated background checks, but in the commission of doing so also defrauded taxpayers to the tune of nearly 7 billion dollars.
This led to nearly 700,000 improperly vetted federal applicants receiving security clearance checks to the nation’s most secure intelligence oversight positions.
The whistle blowers name is Blake Percival. However a web search will produce very little information regarding this because and mention on the internet has been nearly scrubbed.
So if there is any question regarding how the enemy secured such vital positions within our government, one look no further than U.S.I.S. which was successfully used to infiltrated and take over every branch, every level, and every agency of the U.S. government.
Here is a brief oversight:
Not in our stinking banana republic.
"We don't need no steenking Constitution!!"
Ugh. Bad take.
Impeachment is a political process, not a criminal one. Yes it’s BS that this is even happening, but the idea that someone would even suggest double jeopardy as an escape valve is unserious at best.
Address all the points on a technical basis and refute them, including references.
The law is technical as you obviously know. There are many who believe this is the case. So make the case. There is not a footnote in the Constitution saying “this is only for fun! If ya wanna fry the SOB a coupla years after he leaves office, knock yerself out!”
Impeachment, by the House, is a political process, although it is similar to a Grand Jury.
The trial in the Senate is a criminal process.
this is totally clueless from start to finish.
The Congressional process of impeachment / conviction pertains to suitability for holding office. It has nothing to do with criminal prosecution through the judicial branch. An office holder convicted in the Senate would be removed from office - not sent to jail as it is not a prosecution. Being acquitted in the Senate does not negate a criminal prosecution - nor would a conviction require a criminal prosecution.
This is total nonsense.
No it is not.
No. You can find a sixth grade social studies teacher to explain this to you without my assistance. I'm done arguing with idiots. This used to be a forum filled with people who knew how to read and think critically, now it's just a pile of sea lions barking "what's your proof! Cite your sources! 4D Chess!" to a world that is clearly playing by a set of rules they refuse to acknowledge.
Yes, it is.
You a lawyer?
No, it is not. Period.
The trial in the Senate is NOT a criminal trial. It is to determine whether or not an office holder has committed acts making them unfit for office / deciding to remove them from said office. It does not - and cannot - make any determinations as to guilt and punishment of criminal acts as a court of law. You are just flat out wrong to suggest such a thing is the case.
+1
Oh, so you can actually say something more than “nyah nyah nyah.” Very good.
This article contradicts its own argument:
“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.”
The impeachment/conviction process in Congress is not a criminal process. It is a political process entirely to determine if someone is to be removed from office. So this argument the author makes doesn’t even apply under his own standard. He apparently doesn’t know what the impeachment process entails, nor its purpose, to make such an argument.
IOW you can’t.
Pathetic.
Yes, indeed. You have yet to do so on this thread.
You are probably right in regards to the Constitutional point.
However, simply telling someone “No it isn’t” and nothing more is really saying “I’m a supreme dumbass.” To expect anything of substance in reply to that is doubling down on it.
It’s a lovely theory but the constitution says
No person shall twice be placed in jeopardy of the life or freedom…
Impeachment is not a crime which places a defendant in jeopardy of either … a strict constructionalist doesn’t cheery pick the text. This would be a 9-0 against at the Supreme Court because article two speaks to the political process of high crimes and misdemeanors relative to the office, double jeopardy applies to the person. Trump was never in impeachment at jeopardy for incarceration or possession including life. It’s just the way to protect the office.
This is twisting the constitution into a pretzel.
But the trial in the senate cannot place in jeopardy what is in jeopardy for this podunk county prosecutor. The law as stated above is technical. This is the technical plain interpretation.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.