Does Double Jeopardy Bar Trump’s January 6th Indictment?

By: Ronald W. Chapman II

Does Double Jeopardy Apply to Impeachment Proceedings?

A recent article in “The American Mind” suggests that Donald Trump cannot be convicted in Jack Smith’s January 6th indictment because he was impeached and acquitted.

The argument is that Article II, Section 1 of the Constitution reads “[t]he executive Power shall be vested in a President of the United States of America.” From that power flows certain privileges and executive immunities which are expressly delineated in the Constitution itself. Proponents of this argument contend that the Constitution lays out the specific process by which Presidents of the United States are to be prosecuted – through impeachment rather than traditional prosecution due to the uniqueness of the office itself.

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”. Some argue that this allows indictment only after a person is convicted and convicted only.

Is the argument legitimate or just a flailing conservative base in search of a legitimate defense? I break it down below.

D.C. Circuit Rejects this Theory

The case to look at is Hastings v. United States, 716 F. Supp. 38 (D.C. Cir. 1989). In Hastings, a federal judge made much the same claim. He suggests that he cannot be convicted of an offense by criminal indictment where he was first impeached. The D.C. Circuit made quick work of this claim dismissing it outright. The Circuit points out that impeachment trials are distinguished in the constitution from criminal trials. The accused has no right to a jury, and the president may not pardon a person convicted by impeachment. They note that the framers understood that impeachment trials were fundamentally political, which seems to indicate that partiality is not guaranteed. Moreover, the federal rules of evidence don’t apply to impeachment trials.

Of course, Hastings dealt with a federal judge and not the privileges and immunities of the office of the President. However, it appears that Trump is not on solid footing with the D.C. Circuit but the argument is not entirely meritless that he should be immune from prosecution because the acts were committed while he was still in office.

It seems that the framers intended for impeachment trials to be the way in which was pursue a President for “high crimes and misdemeanors” – not federal indictments. The express wording of the constitution provides a significant hurdle to Jack Smith in dismissing the Double Jeopardy claim, “a person convicted upon an Impeachment, shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law”. Did the Framers intend that someone acquitted cannot be charged, is a conviction after impeachment a pre-requisite to criminal charges. One would think that if that was the intent of the Framers they would have expressly said so.

Despite negative case law in the D.C. Circuit, there’s a fair amount of support for this idea in pre-Trump legal opinion memos. In one Office of Legal Counsel memo from 2000, the author asserts that impeachment exhausts every single legal remedy for redressability and therefore bringing subsequent charges runs in violation of the Double Jeopardy Clause. 24 Op. O.L.C. 110, 112 n.2 [2000].

Given the obvious lack of caselaw on the issue, this will be a matter of first impression for the Supreme Court. While the argument has merit, the concern is that this would prevent prosecution of other federal officials subject to removal by impeachment and would require impeachment before criminal charges – this would insulate the Government too much from indictment and may lead to the potential for more corruption.