Trump Indictments Are Unconstitutional Due to Double Jeopardy, Have No Merit

The Constitution’s Article II, Section 1 states that “[t]he executive Power shall be vested in a President of the United States of America.” As a result, President Donald Trump has executive authority granted to him by virtue of his office. Certain benefits and even executive immunity flow from that power. These privileges include those that are specifically listed in the Constitution. For instance, the impeachment procedure stipulates in Article II, Section 4, that for all “high Crimes and Misdemeanors,” the president “shall be removed from Office.”

In other words, the Constitution specifies a procedure for the prosecution of American presidents: impeachment. The peculiar nature of the office of the president calls for impeachment rather than ordinary prosecution (and associated penalties like incarceration). As a result of his position, the president exposes himself to excessive media attention, controversy, and risk. Therefore, the punitive measures that are specific to executive officeholders are in line with the responsibilities and authority of the office. Additionally, one could argue that regardless of the personality and fitness of the office’s holder, the president has a specific constitutional right to protect the office’s integrity. That would specifically entail refraining from imprisoning the officeholder or prior occupants of the office due to alleged criminal activity committed while the officeholder was president. Because of this, the Department of Justice has affirmed that “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., Assistant Attorney General, OLC, Re: Amenability of the President, Vice President, and Other Civil Officers to Federal Criminal Prosecution While in Office 30 [September 24, 1973]). Due to the disastrous effect that such accusations would unavoidably have on the nation’s democratic system, how extensive the extent of such capacities while in office should be construed according to a liberal interpretation.

In any case, the factual grounds upon which President Trump is alleged to have committed a crime or crimes while performing his official duties as president have already been twice considered by the House of Representatives, for which the president—in accordance with Article II, Sec. 4—was acquitted both times by the Senate. This is relevant for the purposes of what is relevant in Jack Smith’s two indictments. All available legal remedies have been used up as a result of the Senate’s decision not to convict President Trump of the alleged crimes he committed. Therefore, continuing to bring charges against the president for the alleged crimes for which he has already been tried is by definition an abuse of judicial power and a clear violation of the Fifth Amendment’s prohibition against double jeopardy: “…nor shall any person be subject to be twice put in jeopardy of life or limb for the same offence.”

Notably, Article I, Section 3’s Impeachment Judgment Clause states that “a person convicted upon an Impeachment, shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law.” A straightforward interpretation of the phrase permits the indictment only after a person has been found guilty. This is in accordance with the long-standing judicial construction principle known as expressio unius est exclusio alterius, which states that because the relevant clause does not include the word “acquittal,” the framers intended that only officeholders who had already been found guilty of their alleged crimes would be subject to further investigation. As a result, officeholders who had already been exonerated based on constitutional procedure were not subject to further investigation. Wells Fargo Bank v. United States, 485 U.S. 351, 357 (1988).

This interpretation is also backed by common sense: according to constitutional procedure, any officeholder who is convicted while in office is required to resign from their position; it is unimaginable that any officeholder would continue in office after being found guilty of a crime. However, because there is a natural continuity in the prosecutorial function after removal from office, a post-conviction prosecution, as opposed to an acquittal, runs a lesser risk of being in violation of double jeopardy and is therefore expressly authorized by Article I, Sec. 3. In fact, more time may be needed to prosecute the case to the fullest extent of the law. The criminal trial has yet to proceed past the conviction, according to constitutional procedure. Contrarily, if an officeholder were found not guilty of an alleged crime and served the remainder of his or her term in office, it would not make sense to reopen a criminal case based largely on the same factual evidence that led to the acquittal after that person left their position. Specifically, after some time had passed since that person was found not guilty, completed their term, and then became a private citizen The latter situation clearly runs the risk of double jeopardy (and defies logic).

Even though the issue is still periodically contested, numerous significant early legal commentary and court rulings strongly favor the latter viewpoint. As one editor of Blackstone’s Commentaries, St. George Tucker, points out, “A conviction upon an impeachment is no bar to a prosecution upon an indictment, so perhaps, an acquittal may not be a bar.” Blackstone’s Commentaries, 1 St. George Tucker, 337 & n* (Philadelphia: William Y. Burch et al., 1803, reprint 1996). In Justice Story’s 1833 Commentaries on the Constitution, he expresses his conviction in the above stated interpretation 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.” This is an even stronger argument for this interpretation. (2 Commentaries on the Story). Similar to the New Hampshire Constitution of 1784, which contained the first bill of rights to explicitly establish a double jeopardy clause, this viewpoint is shared by several state constitutions that precede the federal Constitution but yet offered interpretive guidance. Acquittal is taken into account in the double jeopardy provision of the New Hampshire Constitution: “No subject shall be liable to be tried, after an acquittal, for the same crime or offence.” The Federal and State Constitutions, 4 F. Thorpe, Art. I, Sec. XCI, reproduced in H.R. Doc. No. 357, 59th Congress, 2d Sess. 2455 (1909).

A more recent OLC letter from 2000 states that after a constitutional impeachment results in acquittal, all available legal remedies for redressability have been exhausted; as a result, bringing charges against the officeholder in the future would be a flagrant instance of double jeopardy. According to this theory, the OLC memo acquiesced, saying: “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).

According to the Supreme Court, “the Double Jeopardy Clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense.” Mitchell v. Helvering, 303 U.S. 391, 399 (1938). There is simply no alternative kind of legal redress that is allowable under the Constitution because the president has already been prosecuted—twice—for the alleged crimes supporting both of Jack Smith’s charges.

To sum up, Jack Smith’s allegations are unfounded; to the degree they have any merit at all, they have already been investigated to the utmost extent permitted by the Constitution, and on each count, President Trump has already been cleared of all criminal wrongdoing.