ON INDICTMENTS OF FORMER PRESIDENTS

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Re: ON INDICTMENTS OF FORMER PRESIDENTS

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Whether a Former President May Be Indicted and Tried for the Same Offenses for Which He was Impeached by the House and Acquitted by the Senate

August 18, 2000 Memorandum Opinion for the Attorney General, continued ...

II. The Arguments Considered in Greater Depth, continued ...

2. The Impeachment Judgment Clause Permits Prosecution Following Acquittal: Textual and Historical Considerations

Despite its initial plausibility, we find this interpretation of the Impeachment Judgment Clause ultimately unconvincing for several reasons.

a. Expressio Unius Is Only an Aid to Construction

The expressio unius canon is only an aid to interpretation, an aid that cannot trump larger considerations of context and purpose.

Although the Court has regu­larly endorsed expressio unius arguments, it has also regularly rejected them. See, e.g., Freightliner Corp. v. Myrick, 514 U.S. 280, 288-89 (1995) (statutory preemp­tion); Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 703 (1991) (methods of rebuttal in regulations; citing Sunstein, 90 Columbia L. Rev. at 2190, n.182 for the proposition that “the principle of expressio unius est exclusio alterius ‘is a questionable one in light of the dubious reliability of inferring specific intent from silence’”); Sullivan v. Hudson, 490 U.S. 877, 892 (1989); Herman & MacLean v. Huddleston, 459 U.S. 375, 387 n.23 (1983); Bingler v. Johnson, 394 U.S. 741, 749-50 (1969).

Again and again, the Court has cautioned that the maxim “is an aid to construction, not a rule of law,” Neuberger v. Commissioner, 311 U.S. 83, 88 (1940), and that “(h)owever well these rules may serve at times to aid in deciphering legislative intent, they long have been subordinated to the doctrine that courts construe the details of an act in conformity with its dominating general purpose [and] will read text in the light of context,” SEC v. C.M. Joiner Leasing Corp., 320 U.S. 344, 350-51 (1943); see Herman & MacLean, 459 U.S. at 387 n.23. 21

b. Origins of the Impeachment Judgment Clause and Early Understandings

We are unaware of any evidence suggesting that the framers and ratifiers of the Constitution chose the phrase “the party convicted” with a negative implica­tion in mind.

In its most recent decision approving an expressio unius argument concerning the meaning of a constitutional provision, the Court noted that it found the argument compelling in significant part because such direct evidence of the framers’ intent was available. See U.S. Terms Limit, Inc., 514 U.S. at 793 n.9.

Here, by contrast, the record offers no similar signs of awareness that “the party convicted” would be read to exclude acquitted parties from the effect of the ImpeachmentJudgment Clause’s final sentence.

Indeed, while a number of partici­pants in the ratification debates and several early commentators simply repeated the words of the Impeachment Judgment Clause in describing it, at least two influential participants in the debate, one Member of Congress in the early republic, and at least one of our most distinguished early constitutional commenta­tors understood the clause to allow prosecution of parties who had been acquitted by the Senate as well as of those who had been convicted.

In 1787, impeachment already had a long history in Britain, but in Britain conviction on impeachment might result in a wide array of criminal penalties, including fines, imprisonment, and even execution. 22

Restriction of the punish­ments attendant on conviction by the legislature to removal and disqualification was an American innovation developed over the course of the seventeenth and eighteenth centuries. 23

Five of the state constitutions from the revolutionary period expressly addressed the types of punishments that conviction on impeachment could bring, 24 and three of the five contained language that the drafters of the federal clause may well have borrowed.

New York’s charter of 1777 created a court for the trial of impeachments consisting of the members of the senate, the chancellor, and the judges of the supreme court, and provided that “no judgment of the said court . . . shall . . . extend farther than to removal from office, and disqualification to hold or enjoy any place of honor, trust, or profit under this State."

"But the party so convicted shall be, nevertheless, liable and subject to indict­ment, trial, judgment, and punishment, according to the laws.” 25

The Massachu­setts constitution of 1780 and the New Hampshire constitution of 1784 (largely patterned on its Massachusetts predecessor) made their senates the court for the trial of impeachments and then stated that “(t)heir judgment, however, shall not extend further than to removal from office, and disqualification to hold or enjoy any place of honor, trust, or profit, under this Commonwealth: But the party so convicted, shall be, nevertheless, liable to indictment, trial, judgment, and punish­ment, according to the laws of the land.” 26

21 See also Ford v United States, 273 U.S. 593, 611 (1927) (“This maxim properly applies only when in the natural association of ideas in the mind of the reader that which is expressed is so set over by way of strong contrast to that which is omitted that the contrast enforces the affirmative inference that that which is omitted must be intended to have opposite and contrary treatment”).

22 See, e.g., 2 Joseph Story, Commentaries on the Constitution of the United States 251-52 (1833, reprint 1994) (‘‘Story’s Commentaries); 2 Richard Wooddeson, A Systematical View of the Laws of England 611-14 (1792), Raoul Berger, Impeachment - The Constitutional Problems 67 (1974).

23 See Peter C. Hoffer & N E.H Hull, Impeachment in America 1635-1805, at xi, 97 (1984).

24 Virginia's constitution of 1776 provided that a convicted party ‘‘shall be either forever disabled to hold any office under government, or be removed from such office pro tempore, or subjected to such pains or penalties as the laws shall direct.” 7 Thorpe, supra at 3818. Delaware’s 1776 constitution similarly provided that a convicted party ‘‘shall be either forever disabled to hold any office under government, or removed from office pro tempore, or subjected to such pains and penalties as the laws shall direct.” It also stated that “all officers shall be removed on conviction of misbehavior at common law, or on impeachment, or upon the address of the general assembly.” I id. at 566.

25 5 Thorpe, supra at 2635. The phrase “the party convicted” was apparently in the draft constitution that formed the starting point for debate at the New York convention of 1776-1777. A committee composed of John Jay, Gouvemeur Morris, Robert R. Livingston, William Duer, John Sloss Hobart, Abraham Yates, Jr, Robert Yates, Henry Wisner, William Smith, John Broome, Samuel Townsend, Charles DeWott, and John Morin Scott prepared that draft over the course of several tumultuous months, with the first three named taking the lead roles. See Bernard Mason, The Road to Independence: The Revolutionary Movement in New York 1773-1777, at 213-49 (1966); 1 Charles Z. Lincoln, The Constitutional History of New York 484-539 (1906). The draft apparently originally provided that “no Judgment or Sentence of the said Court . . shall extend farther than to removal from office and Disquali­fication to hold or enjoy any place of Honour, Trust, or Profit under this State." "But the party convicted shall neverthe­less be afterward subject to a farther trial in the Supreme Court by a jury of the Country and to such additional Punishment according to the nature of the Offense and the law of the land as the Judgment of the said court shall be inflicted.” Lincoln, supra at 539. On a motion seconded by Jay and Scott, the convention changed the last sentence to its final form. See 1 Journals of the Provincial Congress. Provincial Convention, and Committee of Safety and Council of the State of New-York 1775-1776-1777, at 878 (1842)

26 3 Thorpe, supra at 1897 (Massachusetts), 4 id. at 2461 (New Hampshire). The somewhat sketchy records of the Massachusetts convention show that this language was included in the draft constitution that provided the starting point for discussion at the convention (and that it had also appeared in the rejected draft constitution of 1778). SeeJournal of the Convention for Framing a Constitution of Government for the State of Massachusetts Bay. From the Commencement of Their First Session, September 1, 1779, to the Close of Their Last Session, June 16, 1780, at 201, 262 (1832). It apparently provoked little or no discussion. When the 1778 draft constitution had been cir­culated, at least one town included an objection to that document’s impeachment judgment clause among its list of criticisms. The town of Sutton attacked the failure to define impeachable offenses clearly, and noted that “(i)f he has broken any Law, why is not to be tryed by a jury as expressed in Article XXXII, but if he has broken any Law he is to be indited, tried, and punished beside so that a Man is to have two trials and two punishments for one crime; the one without Law and another according to Law; shocking to humane Nature we never know when we are safe, when we are transgressors, or when we have done receiving punishments for a fault or pretended one.” The Popular Sources of Political Authority 236 (Oscar & Mary Handlin, eds., 1966) (“Handlin & Handlin”).

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Re: ON INDICTMENTS OF FORMER PRESIDENTS

Post by thelivyjr »

Whether a Former President May Be Indicted and Tried for the Same Offenses for Which He was Impeached by the House and Acquitted by the Senate

August 18, 2000 Memorandum Opinion for the Attorney General, continued ...

II. The Arguments Considered in Greater Depth, continued ...

2. The Impeachment Judgment Clause Permits Prosecution Following Acquittal: Textual and Historical Considerations, continued ...

At the federal Constitutional Convention, most of the debate over impeachment concerned three subjects: the wisdom of allowing impeachment of the President, the tribunal in which impeachments should be tried, and the nature of the offenses that should be impeachable. 27

The limitation on the types of punishments available on conviction and the provision for criminal prosecution despite conviction on impeachment were proposed by the Committee of Detail, to which the Convention on July 23 gave the assignment of crafting a draft constitution based on the convention’s deliberations so far.

That committee made its report on August 6. 28

Their report made the Supreme Court the tribunal for trying impeachments, and the Impeachment Judgment Clause appeared in the final section of their pro­posed judiciary article. 29

The convention approved it, apparently without divi­sion. 30

The Impeachment Judgment Clause remained unchanged throughout the debate over the proper tribunal for trying impeachments and the eventual giving of that responsibility to the Senate. 31

When the Committee of Style and Arrange­ment near the end of the convention reported the clause in its present terms, 32 it occasioned no debate except a proposal, rejected by the convention, to add a provision that a party impeached be suspended from office until tried and acquitted. 33

To sum up, then, the Impeachment Judgment Clause was written as part of a draft constitution that made the Supreme Court, not the Senate, the tribunal for trying impeachments.

The records of the Convention do not show any discus­sion of whether the change in the impeachment court had any effect on the meaning of the clause.

More broadly, the records do not reflect any substantive discussion of the clause’s meaning.

As in the Convention, so during the ratification debates most of the discussion of impeachment concerned the proper tribunal for trying impeachments and the range of impeachable offenses.

Critics of the Constitution questioned the Senate’s role as the court for impeachments, and several state ratifying conventions pro­posed alternative bodies, at least for the trial of Senators. 34

References to the Impeachment Judgment Clause were rare.

Some commentators, in describing the Clause, simply repeated its own terms or mentioned only the particular circumstance it explicitly sanctioned: liability to prosecution following conviction by the Senate.

Hamilton devoted Federalist No. 65, for example, to a defense of the selection of the Senate as the tribunal for trying impeachments.

One of his claims for the Senate’s superiority over the Supreme Court was that, if impeachments were tried before the Supreme Court, the same body would improperly have final review over each of the two trials to which an impeached official might be subjected.

For “(t)he punishment, which may be the consequence of conviction upon impeachment,” he noted, “is not to terminate the chastisement of the offender."

"After having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country; he will still be liable to prosecution and punishment in the ordinary course of law.” 35

Others invoked the Clause in order to defend the Senate’s judicial role by stressing the limited nature of its judgments.

Tench Coxe, a leading advocate of the Constitution in Pennsylvania, in an essay assessing the roles assigned to the newly designed Congress, parried the contention that the Senate had unwisely been given judicial functions, by pointing out that the Senate“ can only, by conviction on impeachment, remove and incapacitate a dangerous officer, but the punishment of him as a criminal remains within the province of the courts of law to be conducted under all the ordinary forms and precautions, which exceedingly diminishes the importance of their judicial powers.” 36

27 See 2 The Records of the Federal Convention of 1787, at 39, 53—54, 64—69, 493, 522-23, 545, 550-52 (Max Farrand, ed, rev. ed. 1966) (“Farrand”). In the debate over making the President subject to impeachment, Benjamin Franklin, for example, argued in favor of retaining the impeachment mechanism, noting that, in the absence of a peaceful method for removing the head of state, assassination had often been the only method for achieving the same end. “It would be the best way therefore,” he argued, “to provide in the Constitution for the regular punishment of the Executive when his misconduct should deserve it and for his honorable acquittal when he should be unjustly accused ” Id. at 65, see also id at 68 (“Had [the Prince of Orange] been impeachable, a regular and peaceable inquiry would have taken place and he would if guilty have been duly punished, if innocent restored to the confidence of the public”).

28 On the appointment of the committee, see 2 id at 85, 95-96, 97, 106. The members were John Rutledge of South Carolina, Edmund Randolph of Virginia, Nathaniel Gorham of Massachusetts, Oliver Ellsworth of Connecticut, and James Wilson of Pennsylvania. For their report, see id. at 185-89.

29 See 2 id. at 187.

30 See 2 id. at 438 & nn 12-13. As Farrand explains, there is a discrepancy on this score between the convention’s printed journal and Madison’s notes. Cf 2 Story’s Commentaries, supra § 786, at 254-55.

31 See 2 Farrand, supra at 334, 337, 367, 422, 423, 427, 431, 438, 444, 473, 493, 495, 500, 522-24, 530, 545, 551, 554, 587, 592, 612-13.

32 See 2 id at 585, 592.

33 See 2 id. at 612-13.

34 The defendant in the first federal impeachment, William Blount, was a Senator (or former Senator). The House adopted a resolution of impeachment, the Senate expelled Blount the next day, and several months later the House adopted articles of impeachment. See 3 Asher C. Hinds, Hinds’ Precedents of the House of Representatives 646-50 (1907) (“Hinds' Precedents”)). Blount challenged the Senate’s jurisdiction on several grounds, one of which was that Senators are not “civil Officers’’ and thus not subject to impeachment. See U S. Const, art II, §4. The Senate’s decision that it lacked jurisdiction has generally been taken as establishing that Senators are not liable to impeachment. See generally Buckner F. Melton, Jr, The First Impeachment. The Constitution’s Framers and the Case of Senator William Blount (1998). At the time of the ratification debates, though, many participants thought Senators (like members of the House of Lords in England) would be subject to impeachment. See, e.g., 2 The Documentary History of the Ratification of the Constitution 492 (Merrill Jensen et al, eds. 1976-) (“DHRC”) (state­ment of James Wilson in the Pennsylvania ratifying convention); 4 Elliot’s Debates, supra at 33 (statement of Mr Taylor in the North Carolina ratifying convention); see also Jackson Turner Main, The Anti-Federalists 139 & n.73 (1961) (collecting additional remarks in ratification debates assuming that Senators would be subject to impeachment).

35 The Federalist No 65, at 442 (Jacob E Cooke, ed, 1961); see also The Federalist No 69, at 463 (Alexander Hamilton) (“The President of the United States would be liable to be impeached, tried, and upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office, and would afterwards be liable to prosecution and punishment in the ordinary course of the law”), The Federalist No. 77, at 520 (Alexander Hamilton) (the President is “at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to the forfeiture of life and estate by subsequent prosecution in the common course of law”).

36 An American Citizen II. 2 DHRC, supra at 143; see also A Democratic Federalist, id at 297 (The Senate “can take no cognizance of a private citizen and can only declare a dangerous public officer no longer worthy to serve his country." "To punish him for his crimes, in body or estate, is not within their constitutional powers." "They must consign him to a jury and a court, with whom the deprivation of his office is to be no proof of guilt”); An American Citizen IV, 13 DHRC, supra at 434, A Patriotic Citizen, 18 DHRC, supra at 10 (“the people . . are not only vested with the power of election of impeachment, and dismission from office for misdemeanors, and of further punishing the culprits by the violated laws of their country”).

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Re: ON INDICTMENTS OF FORMER PRESIDENTS

Post by thelivyjr »

Whether a Former President May Be Indicted and Tried for the Same Offenses for Which He was Impeached by the House and Acquitted by the Senate

August 18, 2000 Memorandum Opinion for the Attorney General, continued ...

II. The Arguments Considered in Greater Depth, continued ...

2. The Impeachment Judgment Clause Permits Prosecution Following Acquittal: Textual and Historical Considerations, continued ...

Still other commentators held up the Impeachment Judgment Clause as evidence that the newly created federal executive would not be able to abuse his power without facing severe punishment.

A Virginia supporter of the Constitution argued that should the President “at any time be impelled by ambition or blinded by passion, and boldly attempt to pass the bounds prescribed to his power, he is liable to be impeached and removed from office; and afterwards he is subject to indictment, trial, judgment, and punishment according to law.” 37

These remarks on the Impeachment Judgment Clause reflect the two concerns motivating it.

Because impeachment was designed to serve above all as a legisla­tive check on executive power, 38 the Impeachment Judgment Clause was intended to make sure both that the special legislative court for the largely political offenses justifying impeachment would be able to impose only political, not ordinary criminal, punishments and that offenders who also violated regular criminal laws would not stand above the law because they had been officeholders when they committed their misdeeds.

Presumably, these commentators did not address the consequences of acquittal by the Senate because that was not a subject the Impeachment Judgment Clause addressed.

Indeed, if the Impeachment Judgment Clause were intended to imply that acquittal by the Senate would block criminal prosecution for the same offenses, one would expect that at least one participant in the process of framing and ratifying the Constitution would have pointed out this negative implication.

We are aware of none.

Two well-informed participants did, however, understand the Impeachment Judgment Clause to imply that an acquittal, like a conviction, would not bar criminal prosecution for the same offences.

James Wilson, a leading figure at the Constitutional Convention (and member of the Committee of Detail, which drafted the Impeachment Judgment Clause), and at the Pennsylvania ratifying convention, and later an Associate Justice of the Supreme Court, revealed such an under­standing in remarks during the Pennsylvania ratifying convention.

Assuming, as many did during the ratification debates, that Senators as well as executive and judicial officers would be liable to impeachment, Wilson responded to the charge that the Senate could not serve as an effective impeachment court for its own members.

Noting that one third of the Senate faced re-election every two years, Wilson suggested that voters would throw out those who behaved improperly and that enough new Senators would regularly be added so that personal connections or collective involvement in the impeachable acts would not prevent fair trials.

Moreover, he argued, ‘‘Though they may not be convicted on impeachment before the Senate, they may be tried by their country; and if their criminality is estab­lished, the law will punish.” 39

Edmund Pendleton, the President of the Virginia Supreme Court and of the Virginia Ratifying Convention, apparently interpreted the Impeachment Judgment Clause in this way as well.

Shortly after the completion of the Constitutional Convention, Madison sent Pendleton a copy of the Con­stitution for his consideration.

In his generally favorable response, Pendleton con­fessed his leeriness of impeachments because of their susceptibility to partisan misuse, but noted that the impeachment power “is in the hands of the House of Representatives, who will not use it in the case Supposed, or if they do, and meet the obstruction, may yet resort to the courts of Justice, as an Acquital would not bar that remedy.’’
40

37 Americanus I, 8 DHRC, supra at 203 William Symmes, a delegate to the Massachusetts Ratifying Convention, noted the same checks in a letter to a friend but questioned whether they would be effective. “If [the President] make a bad treaty, what then? Why he may be impeached, if anybody dares impeach him before ye very Senate that advised ye measure. And if convicted, what? He shall be removed from his office, & perhaps disqualified to hold any other. And after this he may chance to lose his head by a trial at Law, if ye Judges, whom he has appointed, will bid ye Jury to convict him.” Letter from William Symmes, Jr., to Peter Osgood, Jr., 14 DHRC, supra at 113-14, see also James Iredell in the first North Carolina Ratifying Convention, 4 Elliot’s Debates, supra at 114 (“The punishment annexed to this conviction on impeachment can only be removal from office, and disquali­fication to hold any place of honor, trust, or profit. But the person convicted is further liable to trial at common law, and may receive such common-law punishment as belongs to a description of such offences, if it be punishable by that law”); 4 id. at 45 (Mr. MacLaine, repeating Impeachment Judgment Clause verbatim and observing: “Thus you find that no offender can escape the danger of punishment”).

38 Judges were made subject to impeachment near the end of the Constitutional Convention, after nearly all of the substantive discussion of the impeachment power had taken place. See 2 Farrand, supra at 545, 552. That discus­sion focused on relations between the legislature and the executive.

39 2 DHRC, supra at 492. Wilson was also the one who, three years later, proposed the change from “the party convicted” to "the party, whether convicted or acquitted” in the Pennsylvania constitution of 1790. See supra n.9. It is unclear what conclusion, if any, to draw from Wilson’s role in re-wording the impeachment judgment clause in the Pennsylvania constitution — whether it suggests that he thought his initial reading of the federal impeachment judgment clause was erroneous or whether he was instead seeking to clarify something that he thought was implicit in the wording of the federal clause.

40 At least some participants in the first federal impeachment trial, that of Senator William Blount of Tennessee in 1798, shared Wilson’s and Pendleton’s under­standing of the Impeachment Judgment Clause. In a debate over whether an impeachment trial was a criminal proceeding and thus whether the House should instruct the managers to request that the Senate compel the defendant’s appear­ance, Samuel Dana, a Representative from Connecticut, observed that “(w)ere the offence to be considered as a crime, merely, the judgment of the court should involve the whole punishment; whereas, it has no connexion with punishment or crime, as, whether a person tried under an impeachment be found guilty or acquitted, he is still liable to a prosecution at common law.”

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Re: ON INDICTMENTS OF FORMER PRESIDENTS

Post by thelivyjr »

Whether a Former President May Be Indicted and Tried for the Same Offenses for Which He was Impeached by the House and Acquitted by the Senate

August 18, 2000 Memorandum Opinion for the Attorney General, continued ...

II. The Arguments Considered in Greater Depth, continued ...

2. The Impeachment Judgment Clause Permits Prosecution Following Acquittal: Textual and Historical Considerations, continued ...

At least some participants in the first federal impeachment trial, that of Senator William Blount of Tennessee in 1798, shared Wilson’s and Pendleton’s under­standing of the Impeachment Judgment Clause.

In a debate over whether an impeachment trial was a criminal proceeding and thus whether the House should instruct the managers to request that the Senate compel the defendant’s appear­ance, Samuel Dana, a Representative from Connecticut, observed that “(w)ere the offence to be considered as a crime, merely, the judgment of the court should involve the whole punishment; whereas, it has no connexion with punishment or crime, as, whether a person tried under an impeachment be found guilty or acquitted, he is still liable to a prosecution at common law.” 41

Two of our earliest and most eminent commentators on the Constitution also addressed the implications of the Impeachment Judgment Clause for Senate acquit­tals.

St. George Tucker, a distinguished jurist and editor of an edition of Black­stone’s Commentaries that gained widespread use in the early nineteenth-century United States, included the first extended commentary on the new federal constitu­tion since the ratification debates as an appendix to his edition of Blackstone.

In a section questioning the wisdom of making the Senate the tribunal for trying impeachments, Tucker acknowledged that “a person convicted upon an impeach­ment, shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law.”

In a footnote he then added: “And as a conviction upon an impeachment, is no bar to a prosecution upon an indictment, so perhaps, an acquittal may not be a bar.” 42

If Tucker thought the implication of the Impeachment Judgment Clause that Senate acquittals would be no bar to criminal prosecution was only possible, Justice Story seemed to take the point for granted in his 1833 Commentaries on the Constitution.

Story observed that if the Senate had been given the authority to mete out regular criminal punishments, “then, in case of an acquittal, there cannot be another trial of the party for the same offence in the common tribunals of justice” because the common law double jeop­ardy principle would forbid it. 43

Without the Impeachment Judgment Clause, Story contended, ‘‘it might be a matter of extreme doubt’’ whether, in light of the double jeopardy rule, “a second trial for the same offence could be had, either after an acquittal, or a conviction in the court of impeachments.” 44

In Story’s view, the Impeachment Judgment Clause removed any doubt about a double jeopardy bar in the case of Senate acquittals no less than in the case of Senate convictions.

c. Reading the Impeachment Judgment Clause as a Whole, concluded ...

That two participants in the ratification process and a number of other early readers of the Constitution did not understand ‘‘the party convicted’’ as containing a negative implication concerning parties acquitted by the Senate fits our under­standing of the role of the Impeachment Judgment Clause as a whole.

The clause as a whole serves to make clear how the methods for punishing misconduct by high officials in the new American national government would differ from those in the English system.

Indeed, the clause might well be called the Impeachment Conviction or Impeachment Punishments Clause. 45

Again, in England, the House of Lords could not only remove officials from office and disqualify them from holding office, but also impose a full range of criminal punishments on impeach­ment defendants, including, for example, banishment, forfeiture of estate, impris­onment, and death.

In the new American national government, the first sentence of the Impeachment Judgment Clause establishes that the Senate would be limited to the first two sanctions: removal and disqualification.

That restriction would raise the question whether the other punishments the founding generation was accustomed to seeing imposed by the House of Lords could be imposed at all under the new American government.

If the Senate could not impose such sanc­tions, perhaps nobody could.

In support of that view, the phrase “Judgment in cases of impeachment” might have been read to mean the entire group of sanc­tions imposed by any tribunal considering a case arising from facts that led to an impeachment. 46

The Impeachment Judgment Clause’s second part makes clear that the restriction on sanctions in the first part was not a prohibition on further punishments; rather, those punishments would still be available but simply not to the legislature.

The courts would be the bodies entrusted with imposing those punishments even on high officials.

The clause’s final sentence ensured that high officials would be fully punished for their misdeeds.

Thus, because the clause addressed a problem concerning the nature of punishments and the institutions entrusted with imposing them — a problem created by the American break from longstanding English practice — it simply had no need to address the effect of acquittal by the Senate.

41 9 Annals of Congress 2475 (1798).

42 1 St. George Tucker, Blackstone's Commentaries 337 & n.* (Philadelphia, William Y. Birch et al. 1803, reprint 1996) (“Tucker’s Blackstone”)

43 2 Story’s Commentaries, supra at 250 (emphasis added)

44 Id at 251 (emphasis added) Story’s reasoning does not seem to us to be entirely clear. He does not directly address the significance of the phrase “the party convicted.’’ Although much of his discussion of the function of the final sentence of the Impeachment Judgment Clause is focused on, if not limited to, parties convicted by the Senate, his ultimate description of that sentence seems clearly to assume that it creates no bar to prosecution following acquittal by the Senate.

45 In using the term “Impeachment Judgment Clause,” we follow Laurence Tribe. See I Laurence Tribe, American Constitutional Law 159 n.32 (3d ed 2000)

46 While such a broad reading of “Judgment in cases of impeachment” seems in tension with the apparently narrower meaning of the phrase “cases of impeachment” in the jury trial guarantee, see US Const, art. III, §2, cl 3, Madison used the same phrase in his proposal for the Double Jeopardy Clause in a way that comports with the broader meaning “No person shall be subject, except in cases of impeachment, to more than one punishment, or one trial for the same offence.” Creating the Bill of Rights - The Documentary Record from the First Federal Congress 12 (Helen E Veit, Kenneth R. Bowling & Charlene Bangs Bickford, eds., 1991) (“ Veit”).

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Re: ON INDICTMENTS OF FORMER PRESIDENTS

Post by thelivyjr »

Whether a Former President May Be Indicted and Tried for the Same Offenses for Which He was Impeached by the House and Acquitted by the Senate

August 18, 2000 Memorandum Opinion for the Attorney General, continued ...

II. The Arguments Considered in Greater Depth, continued ...

2. The Impeachment Judgment Clause Permits Prosecution Following Acquittal: Textual and Historical Considerations, continued ...

d. Impeachment and Jeopardy: Early Understandings

We recognize that the final sentence of the Impeachment Judgment Clause might be read instead as a partial response to a perceived double jeopardy problem raised by that very American innovation.

Indeed, the expressio unius argument sketched earlier in this memorandum rests on the assumption that the founders understood an impeachment trial as an instance of jeopardy within the meaning of the double jeopardy rule and consciously chose to override that rule in the case of Senate convictions but not acquittals.

We find that assumption hard to square with the little evidence we have concerning the framers’ and ratifiers’ understanding of the possible applicability of the double jeopardy rule to the novel impeachment proceeding created by the Constitution in which the only sanctions upon conviction were removal and disqualification.

The principle of double jeopardy, though not called by that name, was well known at the time of the founding.

And some participants in the process of drafting and ratifying the Constitution may well have thought that the restriction of impeachment sanctions to removal and disqualification did not remove impeachment trials from the principle’s operation.

The citizens of Sutton, Massachusetts, for example, responding in 1778 to a draft state constitution that included an impeachment judgment clause very similar to what was later included in the federal constitution, expressed their conviction that a provision for “two trials and two punishments for one crime” was “shocking to humane Nature!” 47

We think it unlikely, though, that most of the framers or ratifiers had such a clear view that the double jeopardy rule applied to the new species of impeach­ment trial they had created.

Indeed, the formulations of the rule in the sources upon which the framers and ratifiers most heavily relied restricted its reach to cases where the defendant’s life was at stake.

Blackstone, for example, stated the governing maxim as “no man is to be brought into jeopardy of his life, more than once, for the same offence.” 48

47 Handlin & Handlin, supra at 236. See supra n 26

48 4 Blackstone’s Commentaries, supra at 329.

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Re: ON INDICTMENTS OF FORMER PRESIDENTS

Post by thelivyjr »

Whether a Former President May Be Indicted and Tried for the Same Offenses for Which He was Impeached by the House and Acquitted by the Senate

August 18, 2000 Memorandum Opinion for the Attorney General, continued ...

II. The Arguments Considered in Greater Depth, continued ...

2. The Impeachment Judgment Clause Permits Prosecution Following Acquittal: Textual and Historical Considerations, continued ...

d. Impeachment and Jeopardy: Early Understandings, continued ...

Other leading writers on criminal law expressed the principle in similar terms. 49

When, just two years after the drafting of the Constitution, the First Congress proposed a double jeopardy clause as part of the Bill of Rights amendments, it too restricted the principle’s reach, using the phrase “life or limb.”

Even if “life” and “life or limb” in this context were understood to encompass all felonies, 50 and thus some statutory offenses for which the penalties were significant terms of imprisonment, those expressions still lim­ited the reach of the double jeopardy principle to cases where at least the defend­ant’s liberty was at stake. 51

On that understanding, a proceeding in which convic­tion could bring no more than removal and disqualification simply did not amount to an instance of jeopardy.

A number of comments by participants in the framing and ratification of the Constitution support this view of the relationship between the double jeopardy rule and the new American impeachment process.

Those comments interpret the restriction of impeachment sanctions to removal and disqualification as a decisive break with the English practice of criminal punishments in impeachments and thus view those limited sanctions as distinct from the normal criminal punishments that were necessary to place someone in jeopardy.

At the Constitutional Convention, Gouvemeur Morris explained his shift from opposition to, to support of, Presidential impeachment in part based on the limited nature of the punishments the court of impeachment should be empowered to impose.

“Our Executive,” Morris explained, “was not like a magistrate having a life interest, much less like one having an hereditary interest in his office."

"He may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay without being able to guard against it by displacing him."

". . . The Executive ought therefore to be impeachable for treachery; Corrupting his electors, and incapacity were other causes of impeachment."

"For the latter he should be punished not as a man, but as an officer, and punished only by degradation from office.”
52

Morris thus clearly distinguished between mere removal from office, a sanction aimed at protecting the public from corrupt or otherwise dangerous officials, and regular criminal punishments, aimed at preventing crime by invading the offender’s liberty or property.

Participants in the ratification debates similarly pointed out that the punishments imposable by the Senate were political, not criminal, sanctions, aimed more at protecting the integrity of the government than at penalizing the offender.

49 See 2 Hawkins, supra at 524 (“a man shall not be brought into danger of his life for one and the same offence, more than once”). Wood, supra at 664 (“For one shall not be brought into Danger of his Life for the same offence, more than Once ”)

50 For discussions of the possible meanings of ‘‘life or limb,” see Thomas, supra at 119-22 (1998), Stephen N. Limbaugh, Jr., The Case of Ex Parte Lange (or How the Double Jeopardy Clause Lost Its “Life or Limb"), 36 Am. Crim L. Rev 53, 65-66 (1999), Akhil Reed Amar, Double Jeopardy Law Made Simple, 106 Yale L J 1807, 1810-12 (1997)

51 Admittedly, the one revolutionary state constitution that contained a double jeopardy clause did not contain such a limiting phrase. See supra n.19.

52 2 Farrand, supra at 68-69.

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Re: ON INDICTMENTS OF FORMER PRESIDENTS

Post by thelivyjr »

Whether a Former President May Be Indicted and Tried for the Same Offenses for Which He was Impeached by the House and Acquitted by the Senate

August 18, 2000 Memorandum Opinion for the Attorney General, continued ...

II. The Arguments Considered in Greater Depth, continued ...

2. The Impeachment Judgment Clause Permits Prosecution Following Acquittal: Textual and Historical Considerations, continued ...

d. Impeachment and Jeopardy: Early Understandings, concluded ...

Tench Coxe, in one of his American Citizen essays, stressed that the Senate “can only, by conviction on impeachment, remove and incapacitate a dangerous officer, but the punishment of him as a criminal remains within the province of the courts of law." 53

In another essay, Coxe made the same point more fully.

The Senate, as the impeachment court, “can produce no punishment in person or property, even on conviction."

"Their whole judicial power lies within a narrow compass."

"They can take no cognizance of a private citizen and can only declare any dan­gerous public officer no longer worthy to serve his country."

"To punish him for his crimes, in body or estate, is not within their constitutional powers.” 54

In the first North Carolina ratifying convention, William Lenoir made the same point more concisely.

The punishment for conviction on impeachment, he noted, was “(o)nly removal from office and future disqualification."

"It does not touch life or property.” 55

Thus, if they thought about a double jeopardy problem at all, many among the framers and ratifiers probably thought the restriction on impeach­ment sanctions in the first part of the Impeachment Judgment Clause took care of the problem.

Whether for that reason or because they thought the Impeachment Judgment Clause simply did not address the issue, James Wilson and Edmund Pendleton concluded (as did Representative Dana, Justice Story, and perhaps St. George Tucker) that the Impeachment Judgment Clause allowed prosecution fol­lowing acquittal by the Senate.

The expressio unius reading of the Impeachment Judgment Clause assumes that the founding generation understood an impeachment trial to be an instance of jeopardy within the meaning of the double jeopardy rule.

The evidence on point is sparse, but much of it supports the opposite conclusion, namely, that the framers and ratifiers believed that an impeachment trial where only removal and disquali­fication were at stake did not constitute an instance of jeopardy.

53 2 DHRC, supra at 143.

54 2 DHRC, supra at 297, see also 13 id. at 434 (“In all criminal cases, where the property, liberty, or life of the citizen is at stake, he has the benefit of a jury. If convicted on impeachment, which is never done by a jury in any country, he cannot be fined, imprisoned, or punished, but only may be disqualified from doing public mischief by losing his office, and his capacity to hold another ”).

55 4 Elliot's Debates, supra at 204; but see Federalist No. 65, at 442 (Alexander Hamilton) (referring to the Senate’s power to dispose of an impeachment respondent’s “fame and his most valuable rights as a citizen”); 2 Elliot’s Debates, supra at 45 (comment of Gen. Brooks at the Massachusetts ratifying convention that disqualification from federal office “is great punishment”), cf Proceedings of the U.S. Senate in Impeachment Trial of Alcee L Hastings, S Doc. 101-18, at 736 (1989) (“Hastings Trial Proceedings”) (statement of Sen Specter) We find the use of the word “punishment” in these debates of little significance in resolving the double jeopardy question addressed here. As we explain more fully below, many sanctions that in common parlance might be characterized as punishments are not criminal punishments within the meaning of the double jeopardy rule. For example, one might speak of a civil forfeiture as a form of punishment, but it does not normally constitute criminal punishment triggering the protection of the Double Jeopardy Clause. See United States v. Ursery, 518 U.S. 267, 274-88 (1996). Moreover, a number of these statements using the word “punishment” point out precisely how limited the “punish­ments” available upon conviction by the Senate were. See, e.g., 2 DHRC, supra at 297 (statement of Tench Coxe), 4 Elliot’s Debates, supra at 114 (statement of James Iredell in North Carolina ratifying convention).

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Re: ON INDICTMENTS OF FORMER PRESIDENTS

Post by thelivyjr »

Whether a Former President May Be Indicted and Tried for the Same Offenses for Which He was Impeached by the House and Acquitted by the Senate

August 18, 2000 Memorandum Opinion for the Attorney General, continued ...

II. The Arguments Considered in Greater Depth, continued ...

B. Structural Considerations

Our examination of the Impeachment Judgment Clause’s text and history reveals little support for reading into it an implied prohibition on the criminal prosecution of those acquitted by the Senate.

At the same time, while there is some support in the history for the proposition that criminal trial could follow Senate acquittal, that evidence is hardly decisive.

Text and history ultimately leave the question unresolved.

Given that basic uncertainty, three structural considerations lead us to conclude that acquittal by the Senate should not prevent regular prosecution.

The first rests on the special function of impeachment within the scheme of sepa­ration of powers.

The second and third rest on the distinctive qualities of impeach­ment verdicts by the Senate as compared to verdicts by criminal juries.

The first structural consideration is perhaps the most fundamental.

Impeachment and criminal prosecution serve entirely distinct goals.

Impeachment is one of sev­eral tools placed in the hands of Congress in order to enable it to check the other branches and thus to maintain the proper separation of powers.

The limitation on impeachment sanctions to removal and disqualification from office and the requirement that removal be mandatory upon conviction show that impeachment is designed to enable Congress to protect the nation against officers who have demonstrated that they are unfit to carry out important public responsibilities, not to penalize individuals for their criminal misdeeds.

The limitation on sanctions imposable by the Senate reflects the conviction that the national legislature is not to be trusted with dispensing criminal punishments, sanctions aimed not at pro­tecting the integrity of the government’s operations but at penalizing individuals by taking away their life, liberty, or property.


Thus the Impeachment Judgment Clause’s limitation on Senatorial sanctions is of a piece with the Bill of Attainder Clause and the Ex Post Facto Clause, provisions in the Constitution also aimed at breaking decisively with the long English practice of legislatively imposed punishments.

Under our constitutional system, the job of determining guilt that may result in criminal punishment is reserved to the courts, where both the original Constitution and the Bill of Rights ensure that individuals will not suffer those especially severe sanctions without being afforded a number of procedural protec­tions.

Impeachment serves the remedial and protective function of guarding the government’s integrity and thus its effective functioning, a function appropriately entrusted to the legislature.

Trials that may lead to the imposition of criminal punishments must be supervised by the courts, the branch of the national govern­ment both suited and required to guard the defendant’s procedural rights. 56

56 As James Wilson put it in his Law Lectures of 1792, “Impeachments, and offences and offenders impeachable, come not in those descriptions, within the sphere of ordinary jurisprudence." "They are founded on different principles; are governed by different maxims, and are directed to different objects.” 1 The Works of James Wilson 408 (James D Andrews, ed., 1896). The staff of the House Judiciary Committee made the same point at the time of the investiga­tion of President Nixon - “Impeachment and the criminal law serve fundamentally different purposes." "Impeachment is the first step in a remedial process — removal from office and possible disqualification from holding future office." "The purpose of impeachment is not personal punishment, its function is primarily to maintain constitutional govern­ment.” Staff of the House Comm on the Judiciary, 93d Cong, 2d Sess, Constitutional Grounds for Presidential Impeachment 24 (Comm Print 1974); see also Proceedings of the United Stales Senate in the Impeachment Trial of Walter L. Nixon, Jr, A Judge of the United States District Court for the Southern District of Mississippi, S. Doc 101-22, at 36 (1989) (“Walter Nixon Trial Proceedings") (brief of the House of Representatives in support of the articles of impeachment - “Impeachment is not a criminal proceeding." "It is a remedial process designed to protect our institutions of government and the American people from individuals who are unfit to hold positions of public trust”)

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Re: ON INDICTMENTS OF FORMER PRESIDENTS

Post by thelivyjr »

Whether a Former President May Be Indicted and Tried for the Same Offenses for Which He was Impeached by the House and Acquitted by the Senate

August 18, 2000 Memorandum Opinion for the Attorney General, continued ...

II. The Arguments Considered in Greater Depth, continued ...

B. Structural Considerations, continued ...

A second, closely related structural consideration favoring prosecution following acquittal by the Senate is that an acquittal by the Senate may well rest on a legal judgment rather than on a judgment that the respondent did not commit the acts alleged in the articles of impeachment, that is, a judgment that the respondent is not factually guilty.

Most often that non-factual basis for acquittal will be that although the respondent carried out the charged acts, those acts do not amount to “high crimes or misdemeanors.” 57

Sometimes, though, it may be that the Senate lacks the authority to try the respondent.

Indeed, of the eight instances in which the Senate has failed to convict officers impeached by the House, most may fairly be attributed in significant part either to qualms about the charged conduct meeting the constitutional standard for impeachable offenses or to juris­dictional doubts. 58

It makes little sense for a judgment unrelated to factual guilt to prevent bringing a former official to justice for criminal conduct.

As the Supreme Court has explained in justifying the distinction between re-trials fol­lowing reversals of convictions due to trial errors and those due to evidentiary insufficiency, “it would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.” United States v. Tateo, 311 U.S. 463, 466 (1964); see Burks, 437 U.S. at 15—16.

Similarly, it would be a high price indeed for society to pay for every accused official spared removal from office by the Senate’s judgment that the offense fell short of the constitutional standard, or that it lacked the authority to try the official, to be free — unlike citizens possessing no federal office — from prosecution for criminal conduct.

Of course, in the case of trials before the courts our double jeopardy jurispru­dence does give jury verdicts of not guilty, regardless of their basis, an absolutely prohibitive effect on re-trials for the same offenses. See, e.g., Sanabria v. United States, 437 U.S. 54, 64, 75 (1978).

While jury verdicts of not guilty are normally based on insufficiency of the government’s proof, they may be based as well on jurors’ judgments unconnected to the defendant’s factual innocence, for example, on their disagreement with the judge’s statement of the governing law, their belief that the likely punishment is excessive, or their disapproval of what they take to be improper prosecutorial motives or methods.

Although juries lack the legal right to engage in such nullification absent legislative authorization, see Sparf & Hansen v. United States,156 U.S. 51, 59-107 (1895), they undoubtedly possess the power to do so. 59

If juries’ ability to acquit against the evidence does not diminish the effect of their acquittals as bars to successive prosecutions, why should the Senate’s authority to acquit on legal grounds justify relaxing the double jeopardy effect of their acquittals?

The difference between the two cases lies in the different functions served by the Senate in an impeachment trial and by a jury in a criminal trial.

The Senate’s verdict is different from a criminal jury’s in two crucial respects.

First, except in cases of treason or bribery, the Senate’s judgment, unlike a jury’s, inescapably involves a crucial legal judgment: whether the conduct charged constitutes a “high crime or misdemeanor.”

The jury in a criminal trial is above all a fact-finder; at least in the federal system, its ability to nullify based on its own view of the law is tolerated only because it is essential to preserving the independence of juries from judicial coercion and second-guessing.

While the Senate in an impeachment trial takes on the jury’s role of fact-finder, it also assumes the judge’s role of interpreter of the governing law.

Far from constituting a power necessary to protect another function, the Senate’s judgment whether the charged offenses constitute “high crimes and misdemeanors” is an essential part of its function, one entrusted to it by the Constitution.

Second, and more importantly, the Senate’s verdict differs from a jury’s because the legal judgment the Senate must make is also a special kind of political judg­ment.

The drafters of the Constitution probably assigned the Senate, rather than the regular courts, the task of trying impeachments in part because they recognized that impeachment trials necessarily involve making political judgments.

As Ham­ilton observed in Federalist 65, impeachable offenses “are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.” 60

The Senate’s judgment is polit­ical in two senses.

The uncertain contours of the phrase “high crimes and mis­demeanors” mean they must in each case determine whether the charged conduct constitutes a sufficiently serious breach of the public trust to warrant conviction.


That determination will appropriately draw on their knowledge of history, their understanding of the character of the office involved, and their realistic appraisal of the derelictions charged.

Their determination will necessarily be shaped by the Constitution’s mandate that conviction means removal from office. U.S. Const, art. II, § 4.

In order to convict an officer, they must be convinced that his conduct merits his loss of position.

57 Cf. Hoffer & Hull, supra at 114 (statement of Edmund Burke in impeachment trial of Warren Hastings - “The labour will be on the criminality of the facts, where proof, as I apprehend, will not be contested ”)

58 See, for example, the cases of Senator William Blount (1799); Associate Justice Samuel Chase (1805); District Judge James H. Peck (1831), President Andrew Johnson (1868), Secretary of War William W. Belknap (1876); District Judge Charles Swayne (1905).

59 See also Richard St. John, Note, License to Nullify: The Democratic and Constitutional Deficiencies of Authorized Jury Lawmaking, 106 Yale LJ 2563 (1997). Indeed, some leading commentators have suggested that the absoluteness of the double jeopardy bar created by jury acquittals can be explained only as a shield of the jury’s authority to nullify. See Peter Westen & Richard Drubel, Toward A General Theory of Double Jeopardy, 1979 Sup. Ct. Rev 81, 122-55 (1978).

60 The Federalist, supra at 439; see also 1 The Works of James Wilson, supra at 408.

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Re: ON INDICTMENTS OF FORMER PRESIDENTS

Post by thelivyjr »

Whether a Former President May Be Indicted and Tried for the Same Offenses for Which He was Impeached by the House and Acquitted by the Senate

August 18, 2000 Memorandum Opinion for the Attorney General, continued ...

II. The Arguments Considered in Greater Depth, continued ...

B. Structural Considerations, continued ...

In the case of the President, who has been elected by the entire nation (and who cannot remain in office for more than four years without again facing the electorate), they must decide whether to undo the will of the people. 61

Moreover, the necessary link between conviction and removal introduces a second political dimension to the Senate’s judgment as well.

Even if they conclude that the charged conduct would normally merit removal, they must weigh the strength of that conviction against their judgment about the harm­ful consequences for the nation of removal at a particular moment in our nation’s history.

If, for example, our country were in the midst of a war, the Senate might well conclude that an acquittal of the President would be the wiser course simply because his removal would be too costly to the successful prosecution of the war.

The necessarily legal and political judgment embodied in a Senate acquittal is distinct from a determination whether the charged conduct violates the regular criminal laws and does not turn on the determination of factual guilt or innocence.

It is ultimately the unreviewability of the jury’s making of that factual determina­tion that drives the absoluteness of the ban on re-trial for offenses of which a jury has acquitted a defendant.

No such institutional imperative requires a similar ban following Senate acquittals.

On the contrary, the unavoidably legal and polit­ical character of Senate acquittals suggests the inappropriateness of such a ban. 62

A third structural reason that acquittal by the Senate should not prevent criminal prosecution flows from the framers’ concern that partisan loyalties or popular sentiment might influence the Senate’s decision to convict or acquit.

One of the reasons the framers limited the punishments for conviction on impeachment was their fear that impeachments were liable to partisan abuse.


As Hamilton noted in Federalist 65, “(t)he prosecution of them . . . will seldom fail to agitate the passions of the whole community, and to divide it into parties, more or less friendly or inimical, to the accused."

In many cases, it will connect itself with pre-existing factions, and will inlist all their animosities, partialities, influence and interest on one side, or on the other; and in such cases there will always be the greatest danger, that the decision will be regulated more by the comparitive strength of parties than by the real demonstrations of innocence or guilt.” 63

61 One might argue that if the President's alleged conduct violates a regular criminal law, and the Senate acquits based on a judgment that the conduct does not amount to a high crime or misdemeanor and thus does not merit removal, a ban on posl-acquittal prosecution would not impose a serious cost given the double jeopardy principles arguably at stake. Even if an impeachment trial is not technically a criminal proceeding and thus the defendant has not been placed in jeopardy within the meaning of the double jeopardy rule, he has still been subjected to an expensive, trying public ordeal. His accusers have still had a chance to try out their evidence and arguments, a dry run from which subsequent prosecutors may derive advantage. Thus criminal prosecution after an impeachment acquittal arguably still implicates some of the concerns that underlie the double jeopardy rule. Given those concerns, the need to prosecute an offense the Senate has determined does not warrant removal might not be thought sufficient to tip the scale in favor of allowing prosecution following Senate acquittal. Whatever force this objection may have, we think it does not bear on the question of whether indictment is constitutionally permissible. It simply does not address the fact that the Constitution gives the Senate a judgment to make — whether the charged acts warrant removal from office — that is distinct from the judgment placed in the hands of a criminal jury. Moreover, this argument does not account for the possibility that the Senate might conclude, given the circumstances of the nation at the time, that removal is not an appropriate political remedy even for a serious crime.

62 Accord Charles L. Black, Jr., Impeachment - A Handbook 40-41 (1974); 1 Tribe, supra at 160. In Ashe v. Swenson, 397 U.S. 436 (1970), the Court held that the Double Jeopardy Clause incorporates the rule of collateral estoppel in criminal cases. See also Brown v. Ohio, 432 U.S. 161, 166 n.6 (1977). It thus bars successive prosecutions even in some instances where the offenses are not the same. The court in the second prosecution must “examine the record of [the] prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.“ Ashe, 397 U.S. at 444 (citation and internal quotation marks omitted). Based on this principle, which the Court has also held is incorporated by the Due Process Clause, see id. at 445, a party acquitted by the Senate might argue that if the record of the Senate trial shows that the Senate could only rationally have based its acquittal on rejection of a factual finding necessary to his subsequent conviction, the subsequent prosecution would be barred. We express no view about the correctness of this legal argument. Even if one were to accept it, though, given the varied non-factual bases on which the Senate might acquit and the difficulty of ascertaining the basis for a decision by a body with one hundred independently-minded members, we think the required showing would be exceedingly difficult to make.

63 Id. at 439-40

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