Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
—Article I, §3, U.S. Constitution (emphasis added)
On Tuesday, Special Counsel Jack Smith filed a four-count federal grand jury indictment in the Washington D.C. U.S. District Court against former President Donald Trump on charges related to the aftermath of the 2020 election, one day following former Hunter Biden business associate Devon Archer’s testimony in a closed-door Congressional deposition about President Joe Biden’s knowledge and participation in his son Hunter’s international influence-peddling scheme while the elder Biden served as Barack Obama’s Vice-President.
The latest indictment joins the ongoing Democrat lawfare campaign against President Trump, which includes an earlier federal indictment from Smith’s office in the Mar-A-Lago documents case1, and the N.Y. State indictment brought by Manhattan District Attorney Alvin Bragg derived from alleged federal campaign finance violations in paying former Michael Avenatti client “Stormy Daniels” hush money prior to the 2016 campaign.
One of the online reactions to the indictment that I found most interesting was that of Breitbart News’ senior editor-at-large (and in-house counsel) Joel Pollak2, who raised the question whether President Trump’s 2021 impeachment acquittal would protect him against “double jeopardy” in the latest indictment? This is, understandably, what jurists call “an issue of first impression,”3 given the unprecedented indictment of a former President of the United States, and the only chief executive to have been subject to two impeachment trials (both of which resulted in acquittals).4
“What is double jeopardy?”
“Double jeopardy” is the legal principle that in criminal prosecutions, the government can’t keep prosecuting a defendant for the same offense until they obtain a conviction, and that there’s some finality to criminal prosecution on the same set of factual allegations. In the U.S. Constitution, the protection against double jeopardy is found in the Fifth Amendment, which provides:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
—5th Amendment, U.S. Constitution (emphasis added)
This provision of the Fifth Amendment (the “double jeopardy” clause) is actually interpreted more broadly than “jeopardy of life or limb,” according to the British common law (and earlier5) tradition that no man should be punished twice for the same offense.
Impeachment, as Mr. Pollak acknowledges, is “not a formal criminal proceeding,” yet “it has many of the same features as a federal criminal trial.” It also features a lower standard of proof than in a criminal court, which, Pollak argues, makes an acquittal (at least theoretically) “harder to win than one in court.” But that’s likely because a conviction in an impeachment is intended to result in solely a political punishment. It doesn’t put anyone “in jeopardy of life or limb” —for which, in the interests of justice, you would want a higher standard of proof.
Textual analysis
Mr. Pollak’s argument primarily rests on the text of the Constitution’s language in Article I describing the legal effects of impeachment (quoted above), particularly in relation to criminal law. The Constitution, Pollak says, “does say that a person who has been convicted by the Senate in an impeachment trial can still face a federal criminal trial,” but it “does not say that a person who has been acquitted by the Senate can still be subject to the criminal process. Arguably, the Constitution intended to protect an acquitted official.”
This seems like a reasonable reading of the constitutional provision, given that in statutory interpretation one tries to construe the text in a way that gives each word some legal effect. Why does the Constitution only speak of “the Party convicted,” rather than “the Party impeached” (when impeachment articles are the political equivalent of a indictment)? It’s a fair inference from the text that this is because “the Party convicted” is to be treated differently from “the Party acquitted.”6
Back in 2000, the Clinton Administration Department of Justice’s Office of Legal Counsel (OLC) considered this question about the effect of an impeachment acquittal on subsequent criminal prosecution in an extensive legal memo for then Attorney General Janet Reno.7 The OLC concluded “that the Constitution permits a former President to be criminally prosecuted for the same offenses for which he was impeached by the House and acquitted by the Senate while in office” but recognized that “there is a reasonable argument that the Impeachment Judgment Clause should be read to bar prosecutions following acquittal by the Senate[.]”8 The OLC also said that “[a]s far as we are aware, no court has ever ruled on this precise issue.”9
It’s fair to say that, at least textually, one could run this theory past the U.S. Supreme Court. For way more legal background about the Impeachment Judgment Clause than you’re likely to want, you can read the OLC memo.10
The same offence
The Fifth Amendment’s double jeopardy clause (as interpreted) prohibits being twice prosecuted or punished for “the same offense” (or rather, using the British spelling, “offence”). But how do you tell what is “the same offense”? The U.S. Supreme Court’s current test for double jeopardy was established in the 1932 case of Blockburger v. U.S.11
“…where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.”
Blockburger, 284 U.S., at 304.
Criminal offenses have different “elements,” or facts, which the prosecution must prove, so the Blockburger (or “same elements”) test says that if two charged offenses require proving the “same elements,” then they’re the “same offense” for double jeopardy purposes.
That’s the law… here’s the facts.
So to tell whether the Senate acquittal in President Trump’s second impeachment trial from 2021 can (even theoretically) be used in his defense against this federal indictment, we need to compare (roughly) what the elements of the offenses charged in each are. While there are four “counts” in the second federal indictment, there was only one impeachment article voted out in the House for the second impeachment, so let’s start there.
Impeachment Article I was styled “Incitement Of Insurrection” and made the following allegations:
[I]nciting violence against the government of the United States, in that:
[…] In the months proceeding the Joint Session, President Trump repeatedly issued false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the American people or certified by State or Federal officials.
Shortly before the Joint Session commenced, President Trump, addressed a crowd at the Ellipse in Washington, DC. There, he reiterated false claims that “we won this election, and we won it by a landslide”. He also willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol, such as: “if you don’t fight like hell you’re not going to have a country anymore”.
[…] President Trump’s conduct on January 6, 2021, followed his prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election. Those prior efforts included a phone call on January 2, 2021, during which President Trump urged the secretary of state of Georgia, Brad Raffensperger, to “find” enough votes to overturn the Georgia Presidential election results and threatened Secretary Raffensperger if he failed to do so.
The impeachment article is short and lacks much detail, probably because Democrats were in a hurry, and conducted no hearings —so it’s difficult to analogize the few allegations it does provide to the “elements” of a criminal offense. The “insurrection” theory was chosen because, if successful, Democrats wanted to argue that President Trump be disqualified from running for President again in the future. (No doubt they’d still love to make this argument, however constitutionally infirm it is.)
The four counts brought in the new federal indictment are all based on the same corpus of allegations, which form a detailed narrative purporting to supply the guilty acts (actus reus) and guilty mind (mens rea) to state the criminal offenses charged. Notably, however, “inciting an insurrection” is not directly charged in the indictment. But the facts presented to the Senate in the 2021 impeachment trial are undoubtedly many (if not all) of the same facts considered and rejected by the Senate in acquitting President Trump of the impeachment article.
Count 1 - 18 USC §371. Conspiracy to commit offense or to defraud United States
What is alleged is “[a] conspiracy to defraud the United States by using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government.”12
This allegedly included acts to thwart the carrying out of the Electoral Count Act, 3 USC §2, et seq.13 by, among other things, the organizing of contingent electors (so-called “fake electors,” as the media has referred to them) to be submitted to Congress as substitutes for the Democrat electors certified by the governors of states like Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin.14
The indictment repeatedly asserts that President Trump made numerous statements that he knew were false in furtherance of this conspiracy to defraud the United States, and recounts numerous times he was allegedly told that there was no “outcome-determinative fraud” in the 2020 election by people he relied on for advice or who were in a position to know —therefore he must have known what he was claiming was false. In order to prove fraud, prosecutors would have to show that President Trump made false statements in furtherance of the objective of the alleged fraud —statements that he knew were false. A tall order in terms of proof, which would require evidence showing what President Trump actually believed at the time he made particular statements.
The indictment recounts one direct statement allegedly made by President Trump:
On the evening of January 3, the Defendant met for a briefing on an overseas national security issue with the Chairman of the Joint Chiefs of Staff and other senior national security advisors. The Chairman briefed the Defendant on the issue-which had previously arisen in December-as well as possible ways the Defendant could handle it. When the Chairman and another advisor recommended that the Defendant take no action because Inauguration Day was only seventeen days away and any course of action could trigger something unhelpful, the Defendant calmly agreed, stating, “Yeah, you're right, it's too late for us. We're going to give that to the next guy.”
Indictment, §85, pp.30-31.
As the indictment recounts, though, President Trump relied on a legal theory that the Vice-President (presiding as President of the Senate) during the joint session of Congress at which the electoral votes are counted, could recognize legally disputed electoral votes and send them back to the state legislatures for resolution.15
The statute charged in Count 1 of the indictment, 18 USC §371, provides that:
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.
“Fraud,” in the federal criminal law, is intended to encompass either knowing false statements for monetary gain, or (in certain instances provided by statute) “honest services fraud” which, the Supreme Court has held, is limited to corrupt practices such as bribes or kickbacks in exchange for official action.16 The Supreme Court long ago rejected the constitutionality of laws which criminalize broader definitions of fraud,17 under the principle that criminal laws must be stated clearly, so that people can understand in advance what is prohibited, and conform their behavior to avoid breaking the law.
Writing for the unanimous Supreme Court in May of this year, Justice Clarence Thomas stated that:
We have held, however, that the federal fraud statutes criminalize only schemes to deprive people of traditional property interests.18
One cannot have better controlling precedent in one’s favor than a unanimous Supreme Court decision that’s only a few months old!
Count 1 is therefore defective according to existing Supreme Court precedent, because it uses an improper theory to satisfy the elements of fraud.
What else ya got, Smith?
(Substack is telling me I’m approaching the length limit for this column, so I’ll continue my analysis in Part 2, hopefully tomorrow.)
—end—
I previously covered some of the legal fallout from the FBI raid of Mar-A-Lago in earlier Substack articles.
J.D., Harvard Law School 2009.
Something that’s never been considered by a court before (i.e. “nobody really knows”).
L. “Nemo bis punitur pro eodem delicto.”
Technically, this would be a “negative implication.” L. “Expressio unius est exclusio alterius.” The expression of one thing implies the exclusion of others.
The head of the OLC at the time was acting Assistant Attorney General Randolph Moss, who now serves as a U.S. District Judge in D.C.
OLC memo, at IV., p.255.
Id. at p. 110.
Thanks to Stacy Prowell @sprowell on “X,” https://twitter.com/sprowell/status/1687106402299641857 for the reference.
284 U.S. 299, affirmed in U.S. v. Dixon, 509 U.S. 688 (1993).
The “federal government function” being defined as “the nation's process of collecting, counting, and certifying the results of the presidential election.” Indictment, ¶ 4 a., p.2.
The Electoral Count Act was amended following the 2020 election, as part of the end-of-year omnibus Consolidated Appropriations Act(!) signed into law on December 29, 2022. Among the changes made was the addition of language to clarify the role of the Vice-President (as President of the Senate) at the joint session of Congress at which the electoral votes are opened and counted:
3 USC §15(b)(1) Ministerial in nature. - Except as otherwise provided in this chapter, the role of the President of the Senate while presiding over the joint session shall be limited to performing solely ministerial duties.
3 USC §15(b)(2) Powers explicitly denied. - The President of the Senate shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper certificate of ascertainment of appointment of electors, the validity of electors, or the votes of electors.
The allegations regarding contingent electors were not part of the 2021 impeachment article, or the Senate trial.
In addition to enacting language clarifying the role of the Vice President as President of the Senate (see n. 13, above), the 2022 revisions to the Electoral Count Act repealed 3 USC §2, which previously read:
§2. Failure to make choice on prescribed day
Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.
Congress has thus legislatively rejected the legal theory President Trump relied on, even to to the point of denying that alternative electors can be directly appointed by the state legislatures after certification. One could argue, however, that these changes amount to an admission that the previous law, which was in effect on January 6, 2021, permitted President Trump’s interpretation.
Skilling v. U.S., 561 U.S. 358 at 399 (2010).
McNally v. U.S., 483 U.S. 350 (1987).
Ciminelli v. U.S., 598 U. S. 306 at 309 (2023).