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.
See post #18.
I’m not exactly sure what you mean?
I already conceded the point you’re making.
Sorry. Late to the party on my end
It is late. And I’m off to eat a late dinner and watch an old movie. :)
Pathetic.
Y'all are captured and you are looking like clowns. I'm looking forward to when you aren't.
I miss having a reason to donate to this site. I miss Freepathons reaching their goals in days and not weeks. Judging by the pace of donations, I'd bet a lot of other people feel the same way. If your mindset is the prevailing one on this forum. By all means, embrace it and keep going. I want this forum to succeed.
Garland is playing Final Jeopardy.
uhmmm....NO
Impeachment is a political trial, not a criminal trial.
Only way to get there is Supremacy Clause and I don’t think that works either...
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
To your point: The Salem Witch Trials of both impeachment proceedings were under the jurisdiction of The House and not Federal or State violations of law
The second one really demonstrated they mentally hollow and morally corrupt since he was already out of office, they could not possibly have held a legitimate trial, as impeachment is only for those currently holding office, who can be removed upon conviction.
Bread and Circuses...
If the constitutional provision for impeachment only relates to suitability to hold office and is completely separate from any considerations for criminal acts, then there would be no legal impediment for a state prosecutor to bring criminal charges against a sitting President.
I would have no problem with that on principle, but it’s an absurd scenario because it means the U.S. doesn’t really have a federal government.
What’s amazing is that you have to repeatedly answer what is wrong to begin with, impeachment is a political process and and has nothing to do with criminal proceedings, it seems like every day we have a couple of articles posted that offer a new perspective on defending Donald Trump regardless of how ridiculous they are people on FR fall for them completely and then get offended when confronted with evidence that proves the article is false
Yes, the criminal charges against Trump are wrong but the impeachment trials in the Senate have no bearing whatsoever on criminal charges with respect to double jeopardy
So why is it called a trial in the Senate?
.
Facing 717 years, if convicted on all counts - maybe they will give him a century or two off for good behavior?
UnConstitutional in a postConstitutional nation such as the Disunited States is just a word.
There is that pesky “Trump Clause” that gives anyone the right to charge him with anything, deny him the attorney-client privilege, lie about him to get warrants allowing him to be spied on, and just about anything else they want to do to “get Trump”.
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.
Tile guy ties himself in a knot trying to make a nonsensical point. Impeachment is procedural and civil, NOT criminal. His entire argument smacks of desperation.
This would be something if we had a judicial system that was following law.
What would Professors Dershowitz and Turley have to say about this?
If he had been “convicted” by the Senate would he have been subject to any punishment *other than* removal from office?
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