Double Jeopardy – The American Mind

Article II, section 1 of the Constitution says:[t]The executive power will correspond to a president of the United States of America”. Therefore, President Donald Trump had executive power vested in him through his presidential office. From this power derive certain privileges and, in fact, executive immunities. Among these privileges are those expressed in the Constitution. The impeachment process, for example, as set forth 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 establishes a process by which the presidents of the United States must be tried, through impeachment. The reason impeachment, rather than traditional prosecution (and associated punishments such as imprisonment), applies to the president is because of the uniqueness of the office itself. The president exposes himself to great publicity, controversy and risk as a result of his office. Therefore, the punitive measures that adhere exclusively to the executive position are in accordance with the duties and powers of the same position. Moreover, there is a special constitutional prerogative, one might say, in safeguarding the integrity of the presidential office, regardless of the character and fitness of its occupant. Specifically, this would mean not imprisoning the officer or former occupants of the office for alleged wrongdoing done within the officer’s official duties as president. It is for this reason that the Department of Justice has confirmed, “hurt [the President] through a criminal procedure is to disturb the functioning of the entire governmental apparatus, both in foreign and internal affairs”. (Memorandum of Robert G. Dixon, Jr., Asst. Att’y Gen., OLC, Re: Capacity of President, Vice President, and other civilian officials for federal criminal prosecution while in office 30 [Sept. 24, 1973]). How far the scope of these capacities covers during office should give way to a liberal construction because of the catastrophic impact these offices would necessarily have on the political fabric of the country.

In any event, and for the purposes of what is relevant to the two Jack Smith impeachments, the factual grounds that President Trump allegedly committed crimes within his official duties as President have already been considered twice by the House of Representatives, so the president, in accordance with Article II, Sec. 4—he was acquitted both times by the Senate. Because the Senate voted not to convict President Trump of his alleged crimes, all remedies afforded by the constitutional process have been exhausted. Therefore, continuing to indict the president for the reported crimes for which he has already been prosecuted is by definition an abuse of judicial power and an express violation of the Double Jeopardy Clause of the Fifth Amendment: “…nor any person. to be subject to the same crime for putting himself or herself in danger twice…”

In particular, the impeachment sentence clause of the Constitution, article I, art. 3, reads as follows: “A person convicted of an impeachment shall, nevertheless, be liable and subject to indictment, judgment, trial and punishment, according to law.” A plain reading of the clause permits subsequent prosecution after a person is convicted, and only convicted. This is in accordance with the old judicial canon of construction the expression of one is the exclusion of another“the expression of one is to the exclusion of the others,” which states that because the text excludes the term “absolution” from the corresponding clause, the framers intended that only condemned officials would be open to further prosecution, and not officials who have already been constitutionally acquitted of their alleged crimes, thereby exhausting the constitutional remedy. in its entirety. United States v. Wells Fargo Bank485 US 351, 357 (1988).

This construction is also supported by common sense: any official who is convicted while in office, according to constitutional procedure, is necessarily removed from office; it is inconceivable that any official should remain in office after being convicted of a crime. But the reason why a post-conviction prosecution, rather than an acquittal, runs less risk of violating double jeopardy, and is therefore expressly authorized by Article I, art. 3, is because, after the dismissal of the position, there is a natural continuity in the tax function; indeed, additional time may be required to process the case to the fullest extent of the law. Conviction, in accordance with the constitutional procedure, is only the first step in the criminal trial. Conversely, if an officer was acquitted of an alleged crime and served the remainder of his term, it would not make sense to resume a criminal trial based largely on the same factual grounds upon which the acquittal was based, once The acquitted official left office—in particular, after a period of time had elapsed in which the official was acquitted, served the length of his term, and then became a private citizen—only then to resume the criminal trial for which this official was acquitted. he had been acquitted. This last scenario poses an obvious risk of double jeopardy (and flies in the face of common sense).

Although the issue is still occasionally debated, there is strong support for the latter view in several legal commentaries and important early judicial decisions. For example, St. George Tucker, editor of Blackstone comments, raises the strong possibility that since “a conviction on impeachment is not a bar to a prosecution after an indictment, therefore, perhaps, an acquittal cannot be a bar.” (1 St. George Tucker, Blackstone comments 337 in* [Philadelphia, William Y Burch et al. 1803, reprint 1996]). Even stronger authority for this view is found in Justice Story of 1833 Comments on the Constitution, where he expresses his conviction in the aforementioned interpretation of double default: “In case of acquittal,” he wrote, “there can be no other trial of the party for the same crime in the common courts of justice.” (2 stories comments). This view is consistent with other state charters that predated the federal Constitution, but nevertheless provided interpretive guidance, such as the New Hampshire Constitution of 1784, which contained the first bill of rights to explicitly adopt a double jeopardy clause . Under the double jeopardy clause of the New Hampshire Constitution, acquittal, which extends to acquittal by the Senate, provides: “No subject shall, after acquittal, be tried for the same offense or crime”. Art. I, Sec. XCI, 4 F. Thorpe, The federal and state constitutions, reprinted in HR Doc. no. 357, 59th Congress, 2nd Sess. 2455 (1909).

More recently, an OLC memo in 2000 recognizes that an acquittal by constitutional impeachment exhausts all legal remedies for redress, and thus bringing further charges against that official is in flagrant violation of double jeopardy . On this theory, the OLC memo conceded: “Even if the Impeachment Clause’s reference to “the convicted party” were held to imply that acquitted parties could not be prosecuted, this implication would naturally extend only to persons who had been impeached by the House and acquitted by the Senate.” (“If a former president can be accused and tried for the same crime for which he was accused by the Chamber and acquitted by the Senate”, 24 Op. OLC 110, 112 n.2. [2000]).

The Supreme Court has stated that “the double jeopardy clause prohibits only punishing twice, or trying a second time to punish criminallyfor the same crime”. Helvering v. Mitchell, 303 US 391, 399 (1938). Because the President has already been prosecuted—twice—for the alleged crimes underlying both of Jack Smith’s indictments, the legal remedy has already been applied: there is simply no other form of legal remedy that is constitutionally tolerable.

In conclusion, Jack Smith’s claims are ill-founded; to the extent they have any merit, they have already been prosecuted to the extent the Constitution allows, and in each case President Trump has already been acquitted of any criminal wrongdoing.