I’ve been examining whether the 2021 acquittal of President Trump by the Senate in his second impeachment trial can be used as a “double jeopardy” defense against the federal indictment filed this past Tuesday in D.C. by Special Counsel Jack Smith, as suggested by Breitbart News’ editor-at-large (and in-house counsel) Joel Pollak.1 In Part 1, we’ve seen that Smith’s attempt in Count 1 to stretch the federal fraud statute 18 U.S.C. § 371 to allege a conspiracy to defraud the United States by President Trump and his attorneys in challenging the 2020 election results is almost certainly unconstitutional under existing U.S. Supreme Court precedent.2
So, on to the next count…
Count 2 - 18 USC §1512(k). Conspiracy to obstruct an official proceeding
Based on the same factual allegations, Count 2 of the indictment charges President Trump with “Conspiracy to Obstruct an Official Proceeding,” namely “the certification of the electoral vote,” in violation of 18 USC §1512(c)(2), which provides:
(c) Whoever corruptly-
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20 years, or both.
This, aside from the conspiracy element, is the same charge which appears in Count 3, so I’ll discuss them together.
Count 3 - 18 USC §1512(c)(2). Obstruction of, and attempt to obstruct, an official proceeding
Dozens of those charged in the Capitol riot of January 6, 2021 have been convicted under this statute, and it appears from the indictment that Special Counsel Smith’s theory of the case encompasses in the “conspiracy to obstruct” count the actions taken pursuant to the legal theory that Vice-President Pence could return disputed electoral votes to the state legislatures; while the “obstruction, or attempt to obstruct” count pertains to President Trump’s speech at the “Stop The Steal” rally on the National Mall. Count 3 thus would appear to be equivalent to the impeachment article’s overall “incitement” theory, so if acquittal in the impeachment confers protection against double jeopardy, it appears that at least Count 3 could meet the U.S. Supreme Court’s Blockburger “same offense” test.3
Both counts rely on proving President Trump’s state of mind, which in the statute requires that the actions be done “corruptly.”
What is “corruptly”?
As my Jeopardy! clue above says, courts which have considered the meaning of “corruptly” in 18 USC §1512(c)(2) require that there be knowledge on the part of the defendant that their actions are dishonest, wrongful, done with improper purpose, or without justification. D.C. Circuit Judge Amy Berman Jackson4, in an opinion last year in one of the Capitol riot cases, wrote:
While the [2005 U.S. Supreme Court decision in the] Arthur Andersen case did not consider the meaning of the term within the specific context of section 1512(c)(2), several circuits have since relied on the [Arthur Andersen] decision to conclude that “corruptly,” as used in section 1512(c), requires a showing of “dishonesty,” an “improper purpose,” or that defendant acted “wrongfully.”5
If President Trump actually believed he had legal justification for presenting competing slates of electors so that the challenges in state legislatures could go forward if the Vice President returned the electoral votes to certain states, this could present reasonable doubt as to wrongful intent as to the second count.6
As for the third count, which is the part of the indictment that most closely parallels the impeachment article, the Special Counsel has —like the Democrats who drafted the impeachment article— misrepresented to the Court in the indictment what President Trump said at the “Stop The Steal” rally:
d. Finally, after exhorting that "we fight. We fight like hell. And if you don't fight like hell, you're not going to have a country anymore," the Defendant directed the people in front of him to head to the Capitol, suggested he was going with them, and told them to give Members of Congress "the kind of pride and boldness that they need to take back our country."
Indictment, §104, p.39.
The “fight like hell” comment also is quoted in the 2021 impeachment article. In context, the “we” who “fight like hell” is clearly President Trump and his campaign, who he contrasts in the previous sentence with “most people” (i.e. most political candidates):
Our brightest days are before us. Our greatest achievements, still wait. I think one of our great achievements will be election security. Because nobody until I came along had any idea how corrupt our elections were.
And again, most people would stand there at 9 o'clock in the evening and say "I want to thank you very much," and they go off to some other life. But I said, "Something's wrong here. Something’s really wrong. Can't have happened."
And we fight. We fight like hell. And if you don't fight like hell, you're not going to have a country anymore.
Our exciting adventures and boldest endeavors have not yet begun, my fellow Americans… for our movement, for our children, and for our beloved country.
And I say this despite all that's happened… the best is yet to come.
So we’re going to, we’re going to walk down Pennsylvania Avenue —I love Pennsylvania Avenue— and we’re going to the Capitol, and we’re going to try and give —the Democrats are hopeless, they’ll never vote for anything, not even one vote— but we’re going to try and give our Republicans, the weak ones, because the strong ones don’t need any of our help. We’re going to try and give them the kind of pride and boldness that they need to take back our country.
So let’s walk down Pennsylvania Avenue.
In the overall context of the speech, there was no incitement to violence or to obstruction, and the “fight” was metaphorical, not physical. Earlier, President Trump explained the intent of going to the Capitol, to encourage the Congress to contest the Electoral College votes (something that the rioters’ violence in fact thwarted):
And after this, we're going to walk down, and I'll be there with you, we're going to walk down, we're going to walk down...Anyone you want, but I think right here, we're going to walk down to the Capitol, and we're going to cheer on our brave Senators and Congressmen and women, and we're probably not going to be cheering so much for ...some of them, because you'll never take back our country with weakness. You have to show strength, and you have to be strong. We have come to demand that Congress do the right thing, and only count the electors who have been lawfully slated ...lawfully slated. I know that everyone here will soon be marching over to the Capitol building, to peacefully and patriotically make your voices heard.
Count 4 - 18 USC §241. Conspiracy against rights
The fourth count of the indictment alleges a conspiracy “to injure, oppress, threaten, and intimidate one or more persons in the free exercise and enjoyment of a right and privilege secured to them by the Constitution and laws of the United States-that is, the right to vote, and to have one's vote counted.”
18 USC §241, provides:
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured-
They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.
It would seem from the text of this statute and its legislative history, that this law is intended to punish conspiracy to inflict physical injury or intimidation on people in the exercise of their constitutional rights, but the courts have interpreted “injure” more broadly in connection with voting rights. Arguably, under this broader interpretation, those in government who conspired to injure the First Amendment rights of Americans through government-directed censorship of social media could be held criminally liable under this section. Unfortunately, that would require a Department of Justice that would bring such charges. Also, unfortunately, Congress has not yet provided for a right of private action for ordinary constitutional torts such as this.7
The “conspiracy against rights” count of the indictment appears to be related to the alternative electors challenge to the electoral vote count, and would again require proof that President Trump knew that the acts alleged in support of that election challenge were criminal, and that he and at least one other person intended injury to the voting rights of certain persons, presumably Biden voters. Perhaps some of the best evidence to the contrary is President Trump’s statement during his speech on January 6th, 2021 that “Congress do the right thing, and only count the electors who have been lawfully slated.”
Much of the defense against the indictment then, boils down to whether President Trump’s reliance on legal advice in challenging the results of the 2020 election can be considered criminal. The Special Counsel’s office has listed in the indictment six alleged co-conspirators, four of whom are attorneys, and one of whom is identified as a Justice Department official (also an attorney). Given that the use of contingent or alternate electors is not without precedent, the indictment would seem to criminalize zealous advocacy, or at least reliance on such. One telling anecdote cited in the indictment is this alleged conversation from a meeting on January 4th, 2021:
When the Vice President challenged Co-Conspirator 2 on whether the proposal to return the question to the states was defensible, Co-Conspirator 2 responded, "Well, nobody's tested it before." The Vice President then told the Defendant, "Did you hear that? Even your own counsel is not saying I have that authority."8
No, he’s simply saying it’s a legal theory that’s not been tested in court before, just like the theory that acquittal in a Senate impeachment trial would provide a “double jeopardy” defense on the same charges. By contrast, Special Counsel Smith has no similar excuse for advancing his novel “fraud against the United States” count in the face of very strong Supreme Court precedent.9
Under the Supreme Court’s Blockburger “same offense” test for double jeopardy, it appears that at least the Count 3 “obstruction of an official proceeding” charge is vulnerable. The majority of the Special Counsel’s allegations though, based as they appear to be on the alternate or contingent electors issue, are not charges similar to those presented in the 2021 “insurrection” impeachment trial.
But there’s another problem…
The 2021 second impeachment trial of Donald Trump took place on February 9-13, 2021, when President Trump was no longer in office. A portion of the defense argument and the preliminary debate in the impeachment trial concerned whether the Senate could even hold an impeachment trial and consider an article of impeachment against a now former President. The Chief Justice of the U.S. Supreme Court, John Roberts, who would ordinarily preside over an impeachment trial (and had already done so once for the “Ukraine phone call” impeachment of President Trump in 2019), effectively expressed his view of the question by not attending.10 Nonetheless, the Senate voted, and decided that they could.11
But the argument remains. Following the trial, Senate Minority Leader Mitch McConnell (R-KY) expressed his view, citing the revered treatise of law authored by an early Associate Justice of the United States Supreme Court, Joseph Story (1779-1845).
...impeachment was never meant to be the final forum for American justice. Impeachment, conviction, and removal are a specific intragovernmental safety valve. It is not the criminal justice system, where individual accountability is the paramount goal.
Indeed, Justice Story specifically reminded that while former officials were not eligible for impeachment or conviction, they were--and this is extremely important--"still liable to be tried and punished in the ordinary tribunals of justice."
Put another way, in the language of today, President Trump is still liable for everything he did while he was in office, as an ordinary citizen--unless the statute of limitations is run, still liable for everything he did while he was in office. He didn't get away with anything --yet. We have a criminal justice system in this country. We have civil litigation, and former Presidents are not immune from being accountable by either one.
(emphasis added)
Justice Story, whose “Commentaries on the Constitution of the United States” (published in 1833) remains influential on jurists (including the Supreme Court) today, had this to say on the subject of impeachment of former officials:
As it is declared in one clause of the Constitution that "judgment in cases of impeachment shall not extend further than a removal from office, and disqualification to hold any office of honor, trust, or profit under the United States," and in another clause, that the "President, Vice-President, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes or misdemeanors," it would seem to follow that the Senate, on the conviction, were bound in all cases to enter a judgment of removal from office, though it has a discretion as to inflicting the punishment of disqualification. If, then, there must be a judgment of removal from office, it would seem to follow that the Constitution contemplated that the party was still in office at the time of impeachment. If he was not, his offence was still liable to be tried and punished in the ordinary tribunals of justice. And it might be argued, with some force, that it would be a vain exercise of authority to try a delinquent for an impeachable offence, when the most important object for which the remedy was given was no longer necessary or attainable. And although a judgment of disqualification might still be pronounced, the language of the Constitution may create some doubt whether it can be pronounced without being coupled with a removal from office. There is also much force in the remark that an impeachment is a proceeding purely of a political nature. It is not so much designed to punish an offender as to secure the state against gross official misdemeanors. It touches neither his person nor his property, but simply divests him of his political capacity.
(emphasis added)
In Justice Story's (and Sen. McConnell's) view, the 2021 Senate trial shouldn't have happened, because the Constitution doesn't provide for the impeachment of anyone who's not in office (and thus no longer subject to possible removal). In effect, the impeachment resolution voted out by the House would have expired, similar to the operation of a statute of limitation, with the end of President Trump's term, at noon on January 20, 2021. If this argument is correct, the Senate acquittal, whatever the charges, thus may not be used as a defense against "double jeopardy," since the 2021 second impeachment trial of President Trump was itself unconstitutional.
But unless Democrats want to acknowledge that they put the country through an unconstitutional impeachment, or risk that the Supreme Court so rules if this “double jeopardy” defense theory is tested on appeal, President Trump may be able to use it to knock out at least one of the counts in this latest indictment.
—end—
A 2009 alum of Harvard Law School.
It’s also not clear exactly how Smith claims that the United States government itself was defrauded by the alleged scheme, when Smith cites numerous government officials who said they didn’t believe President Trump’s claims of widespread fraud in the 2020 election.
See Part 1.
Nominated to the D.C. U.S. District Court by President Obama, Judge Jackson was confirmed by the Senate on March 17, 2011, by a 97–0 vote.
U.S. v. Rodriguez, (D. DC. 2022) at 23.
See also notes 13 and 15 in Part 1.
Some commenters have also noted that many, if not most, of the comments cited in the indictment are protected political speech under the 1st Amendment, and that President Trump may raise that in his defense.
Indictment, ¶ 93, p.34. “Co-Conspirator 2” is identified as “an attorney who devised and attempted to implement a strategy to leverage the Vice President’s ceremonial role overseeing the certification proceeding to obstruct the certification of the presidential election.” Indictment, ¶ 8b. pp.3-4.
See Part 1.
Chief Justice Roberts’ reason for declining was reportedly because the text of the Constitution states that "When the President of the United States is tried the Chief Justice shall preside,” which Roberts interpreted to mean only the sitting President.
The vote to proceed was 56-44 in favor.
One other interesting question is the effect such a double jeopardy defense based on President Trump's Senate acquittal could have on the expected forthcoming indictment in Georgia related to the claim that President Trump illegally demanded that the "secretary of state of Georgia, Brad Raffensperger [...] 'find' enough votes to overturn the Georgia Presidential election results." The allegations concerning this phone call were included in both the 2021 impeachment article (where the above quote comes from) and Special Counsel Smith's indictment (¶31 f., p.16).
Does the impeachment acquittal preclude criminal charges based on that allegation, even though that particular allegation wasn't necessary to find the President not guilty of "incitement of an 'insurrection'"?