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
The Constitution permits a former President to be indicted and tried for the same offenses for which he was impeached by the House of Representatives and acquitted by the Senate.
August 18, 2000 Memorandum Opinion for the Attorney General
We have been asked to consider 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. 1
TO BE CONTINUED ...
ON INDICTMENTS OF FORMER PRESIDENTS
Re: ON INDICTMENTS OF FORMER PRESIDENTS
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 ...
In 1973, in a district court filing addressing a related question in the criminal tax evasion investigation of Vice President Agnew, the Department took the position that acquittal by the Senate creates no bar to criminal prosecution.
A 1973 Office of Legal Counsel (“OLC” ) memorandum discussing the same question adopted the same position.
As far as we are aware, no court has ever ruled on this precise issue.
During the impeachment of Judge Alcee Hastings in the late 1980s, though, a district court and both the House and Senate passed on the related question whether an acquittal in a criminal prosecution should bar an impeachment trial for the same offenses.
Each of those bodies concluded that the Constitution permits an official to be tried by the Senate for offenses of which he has been acquitted in the courts.
Although we recognize that there are reasonable arguments for the opposing view, on balance, and largely for some of the same structural reasons identified in the United States’s filing in the Agnew case and the 1973 OLC memorandum, we think the better view is that a former President may be prosecuted for crimes of which he was acquitted by the Senate.
Our conclusion concerning the constitutional permissibility of indictment and trial following a Senate acquittal is of course distinct from the question whether an indictment should be brought in any particular case.
This memorandum has three parts.
First, we review the reasoning of the United States’s filing in the Agnew case and of the 1973 OLC memorandum.
Second, we consider in greater depth the arguments for and against the constitutional permissibility of criminal prosecution of officials for the same offenses of which they have been acquitted by the Senate.
1 In the context of successive trials in the courts, double jeopardy claims often raise the preliminary question whether the offenses charged in the second proceeding are the same as those that formed the basis for the first proceeding. See, eg., United States v. Dixon, 509 U.S. 688, 696 (1993); Blockburger v United States, 284 U.S. 299 (1932). We understand the question posed to assume that this issue has been resolved, and thus we express no view on how the issue might arise or be resolved in the circumstance of criminal prosecution following an impeachment trial.
TO BE CONTINUED ...
August 18, 2000 Memorandum Opinion for the Attorney General, continued ...
In 1973, in a district court filing addressing a related question in the criminal tax evasion investigation of Vice President Agnew, the Department took the position that acquittal by the Senate creates no bar to criminal prosecution.
A 1973 Office of Legal Counsel (“OLC” ) memorandum discussing the same question adopted the same position.
As far as we are aware, no court has ever ruled on this precise issue.
During the impeachment of Judge Alcee Hastings in the late 1980s, though, a district court and both the House and Senate passed on the related question whether an acquittal in a criminal prosecution should bar an impeachment trial for the same offenses.
Each of those bodies concluded that the Constitution permits an official to be tried by the Senate for offenses of which he has been acquitted in the courts.
Although we recognize that there are reasonable arguments for the opposing view, on balance, and largely for some of the same structural reasons identified in the United States’s filing in the Agnew case and the 1973 OLC memorandum, we think the better view is that a former President may be prosecuted for crimes of which he was acquitted by the Senate.
Our conclusion concerning the constitutional permissibility of indictment and trial following a Senate acquittal is of course distinct from the question whether an indictment should be brought in any particular case.
This memorandum has three parts.
First, we review the reasoning of the United States’s filing in the Agnew case and of the 1973 OLC memorandum.
Second, we consider in greater depth the arguments for and against the constitutional permissibility of criminal prosecution of officials for the same offenses of which they have been acquitted by the Senate.
1 In the context of successive trials in the courts, double jeopardy claims often raise the preliminary question whether the offenses charged in the second proceeding are the same as those that formed the basis for the first proceeding. See, eg., United States v. Dixon, 509 U.S. 688, 696 (1993); Blockburger v United States, 284 U.S. 299 (1932). We understand the question posed to assume that this issue has been resolved, and thus we express no view on how the issue might arise or be resolved in the circumstance of criminal prosecution following an impeachment trial.
TO BE CONTINUED ...
Re: ON INDICTMENTS OF FORMER PRESIDENTS
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 ...
Third, we summarize and consider the significance of the Hastings impeachment process and of the Senate trials of two other federal judges who were impeached and convicted during the 1980s following criminal prosecution.
I. The 1973 Justice Department Documents
A. The United States’s Brief in the Grand Jury Investigation of Vice President Agnew
In 1972, the United States Attorney for the District of Maryland empaneled a grand jury to investigate criminal charges against Vice President Spiro Agnew.
The Vice President filed a motion with the district court supervising the grand jury seeking to enjoin the grand jury from investigating or indicting him, claiming that his office gave him immunity from indictment and criminal trial.
The United States filed a brief, signed by Solicitor General Robert Bork, opposing the Vice President’s motion.
The brief's central contention was that “all civil officers of the United States other than the President are amenable to the federal criminal process either before or after the conclusion of impeachment proceedings.” Memorandum for the United States Concerning the Vice President’s Claim of Constitutional Immunity, In Re Proceedings of the Grand Jury Impaneled December 5, 1972: Application of Spiro T. Agnew, Vice President of the United States, Civ. No. 73-965 (D. Md. filed Oct. 5, 1973) at 3 (“Agnew Brief").
One of the arguments the brief addresses is the contention that the Impeachment Judgment Clause, Article I, Section 3, Clause 7 of the Constitution dictates that impeachment must precede indictment.
That clause provides: 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.
In response to the argument that impeachment must precede prosecution, the brief first states, “As it applies to civil officers other than the President, the principal operative effect of Article I, Section 3, Clause 7, is solely the preclusion of pleas of double jeopardy in criminal prosecutions following convictions upon impeachments.” Agnew Brief at 7.
It goes on, however, to contend that the clause allows criminal prosecution upon acquittal by the Senate as well. See id. at 8.
It then provides, though in very summary form, five arguments for that conclusion.
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August 18, 2000 Memorandum Opinion for the Attorney General, continued ...
Third, we summarize and consider the significance of the Hastings impeachment process and of the Senate trials of two other federal judges who were impeached and convicted during the 1980s following criminal prosecution.
I. The 1973 Justice Department Documents
A. The United States’s Brief in the Grand Jury Investigation of Vice President Agnew
In 1972, the United States Attorney for the District of Maryland empaneled a grand jury to investigate criminal charges against Vice President Spiro Agnew.
The Vice President filed a motion with the district court supervising the grand jury seeking to enjoin the grand jury from investigating or indicting him, claiming that his office gave him immunity from indictment and criminal trial.
The United States filed a brief, signed by Solicitor General Robert Bork, opposing the Vice President’s motion.
The brief's central contention was that “all civil officers of the United States other than the President are amenable to the federal criminal process either before or after the conclusion of impeachment proceedings.” Memorandum for the United States Concerning the Vice President’s Claim of Constitutional Immunity, In Re Proceedings of the Grand Jury Impaneled December 5, 1972: Application of Spiro T. Agnew, Vice President of the United States, Civ. No. 73-965 (D. Md. filed Oct. 5, 1973) at 3 (“Agnew Brief").
One of the arguments the brief addresses is the contention that the Impeachment Judgment Clause, Article I, Section 3, Clause 7 of the Constitution dictates that impeachment must precede indictment.
That clause provides: 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.
In response to the argument that impeachment must precede prosecution, the brief first states, “As it applies to civil officers other than the President, the principal operative effect of Article I, Section 3, Clause 7, is solely the preclusion of pleas of double jeopardy in criminal prosecutions following convictions upon impeachments.” Agnew Brief at 7.
It goes on, however, to contend that the clause allows criminal prosecution upon acquittal by the Senate as well. See id. at 8.
It then provides, though in very summary form, five arguments for that conclusion.
TO BE CONTINUED ...
Re: ON INDICTMENTS OF FORMER PRESIDENTS
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 ...
I. The 1973 Justice Department Documents, continued ...
First,impeachment and trial by the Senate, on the one hand, and prosecution in the courts, on the other, “serve different ends.” Id.
Although the brief does not actually spell out those different ends, they seem to be protection of our institutions of government from corrupt or incompetent officials, on the one hand, and punishment of those individuals, on the other.
The only illustration the brief offers is that “a civil officer found not guilty by reason of insanity in a criminal trial could certainly be impeached nonetheless.” Id. at 9.
In a related vein, the brief argues that trial on impeachment is a civil proceeding akin to deportation rather than a criminal proceeding. Id. at 10 n.**.
Second, the brief points out that impeachment trials “may sometimes be influenced by political passions and interests that would be rigorously excluded from a criminal trial.” Id. at 9.
Third, an acquittal by the Senate will often rest on a determination by at least a third of the Senate that the conduct alleged, though proven, does not amount to a high crime or misdemeanor.
Such a judgment in no way reflects a determination that the conduct is not criminal in the ordinary sense. Id.
Fourth, if the scope of the Impeachment Judgment Clause were restricted to convicted parties, “the failure of the House to vote an impeachment, or the failure of the impeachment in the Senate, would confer upon the civil officer accused complete and — were the statute of limitations permitted to run — permanent immunity from criminal prosecution however plain his guilt.” Id. at 9-10. 2
Fifth, such a view would give Congress an indirect power of pardon — via impeachment and acquittal — even though the Constitution vests the President alone with the power to pardon. Id.at 10.
2 The brief does not explain why the House’s failure to impeach would, on any reading of the Impeachment Judgment Clause, act as a bar. Even if one took the view that the Impeachment Judgment Clause’s reference to “the party convicted” implied that acquitted parties could not be criminally prosecuted, that implication would naturally extend only to individuals who had been impeached by the House and acquitted by the Senate. (In regular criminal proceedings, jeopardy does not attach until the jury has been sworn, see, e.g, Cnst v. Bretz, 437 U.S 28, 35-38 (1978), or, in a bench trial, the first witness has taken the stand, see, eg, id at 37 n.15.
At the time of the drafting of the Constitution, the common law rule was that jeopardy did not attach until the jury had rendered a verdict. See, e.g., 2 William Hawkins, A Treatise of the Pleas of the Crown 527 (6th ed 1787)) The brief appears to treat an impeachment investigation and a rejection of articles of impeachment by the House as a type of acquittal. We are unaware of any commentator or Member of Congress who has adopted this position.
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August 18, 2000 Memorandum Opinion for the Attorney General, continued ...
I. The 1973 Justice Department Documents, continued ...
First,impeachment and trial by the Senate, on the one hand, and prosecution in the courts, on the other, “serve different ends.” Id.
Although the brief does not actually spell out those different ends, they seem to be protection of our institutions of government from corrupt or incompetent officials, on the one hand, and punishment of those individuals, on the other.
The only illustration the brief offers is that “a civil officer found not guilty by reason of insanity in a criminal trial could certainly be impeached nonetheless.” Id. at 9.
In a related vein, the brief argues that trial on impeachment is a civil proceeding akin to deportation rather than a criminal proceeding. Id. at 10 n.**.
Second, the brief points out that impeachment trials “may sometimes be influenced by political passions and interests that would be rigorously excluded from a criminal trial.” Id. at 9.
Third, an acquittal by the Senate will often rest on a determination by at least a third of the Senate that the conduct alleged, though proven, does not amount to a high crime or misdemeanor.
Such a judgment in no way reflects a determination that the conduct is not criminal in the ordinary sense. Id.
Fourth, if the scope of the Impeachment Judgment Clause were restricted to convicted parties, “the failure of the House to vote an impeachment, or the failure of the impeachment in the Senate, would confer upon the civil officer accused complete and — were the statute of limitations permitted to run — permanent immunity from criminal prosecution however plain his guilt.” Id. at 9-10. 2
Fifth, such a view would give Congress an indirect power of pardon — via impeachment and acquittal — even though the Constitution vests the President alone with the power to pardon. Id.at 10.
2 The brief does not explain why the House’s failure to impeach would, on any reading of the Impeachment Judgment Clause, act as a bar. Even if one took the view that the Impeachment Judgment Clause’s reference to “the party convicted” implied that acquitted parties could not be criminally prosecuted, that implication would naturally extend only to individuals who had been impeached by the House and acquitted by the Senate. (In regular criminal proceedings, jeopardy does not attach until the jury has been sworn, see, e.g, Cnst v. Bretz, 437 U.S 28, 35-38 (1978), or, in a bench trial, the first witness has taken the stand, see, eg, id at 37 n.15.
At the time of the drafting of the Constitution, the common law rule was that jeopardy did not attach until the jury had rendered a verdict. See, e.g., 2 William Hawkins, A Treatise of the Pleas of the Crown 527 (6th ed 1787)) The brief appears to treat an impeachment investigation and a rejection of articles of impeachment by the House as a type of acquittal. We are unaware of any commentator or Member of Congress who has adopted this position.
TO BE CONTINUED ...
Re: ON INDICTMENTS OF FORMER PRESIDENTS
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 ...
I. The 1973 Justice Department Documents, continued ...
B. The 1973 OLC Memorandum
In 1973, this Office prepared a memorandum on the amenability of the President, the Vice President, and other civil officers to federal criminal prosecution while in office.
The memorandum’s central conclusion was that all federal officers and the Vice President, but not the President, are amenable to federal prosecution while in office.
The memorandum did not discuss at any length the question whether a former President who has been acquitted by the Senate may be indicted and criminally tried.
It did spend considerable time, however, refuting the notion that the Impeachment Judgment Clause required officers to be impeached by the House and tried by the Senate before they may be criminally prosecuted.
Instead, the memorandum stated, “(t)he purpose of this clause . . . is to permit criminal prosecution in spite of the prior adjudication by the Senate, i.e., to forestall a double jeopardy argument.” Memorandum from Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel, Re: Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution While in Office at 3 (Sept. 24, 1973) (“1973 OLC Memo”).
In support of that claim, the memorandum cited a passage from the argument made by Luther Martin in his role as defense counsel in the impeachment trial of Justice Chase in 1805 3 and quoted a passage from Justice Joseph Story’s 1833 Commentaries on the Constitution. 4
Story, the memorandum suggested, took the position that neither conviction nor acquittal by the Senate would bar a criminal prosecution. Id. at 2 n.2.
The reasoning supporting our embrace of the position we attributed to Story was
contained in a single sentence in a footnote: “The conclusion that acquittal by the Senate does not bar criminal prosecution follows from the consideration that such an acquittal may be based . . . onjurisdictional grounds, e.g., that the defendant is not an officer of the United States in the constitutional sense, or on discretionary grounds, e.g., that the defendant no longer is an officer of the United States and unlikely to be reappointed or reelected, or on grounds which are partly jurisdictional and partly substantive, e.g., that the offense was not of an impeachable nature.” Id.
The memorandum thus rested its conclusion on a somewhat elaborated version of the third argument made in the United States’s brief in the Agnew case.
3 The citation is 14 Annals of Congress 432 (1805). Martin had been a delegate from Maryland at the Constitutional Convention. The memorandum cited a portion of Martin’s speech at the Chase trial for the proposition that “Article1, section 3, clause 7 was designed to overcome a claim of double jeopardy rather than to require that impeachment must precede any criminal proceedings.” 1973 OLC Memo at 3. In support of his larger argument that impeachable offenses were limited to indictable offenses, Martin imputed to the House managers the view that “a judge is only removable from office on account of crimes committed by him as a judge, and not for those for which he would be punishable as a private individual.” 14 Annals of Cong 431 (1805). If that were true, Martin argued, a judge might be convicted and punished in the courts for burglary or receiving stolen goods and “yet he could not be removed from office, because the offence was not committed by him in his judicial capacity, and because he could not be punished twice for the same offence.’’ Id. That implication, Martin explained, must be wrong. The truth is, the framers of the Constitution, for many reasons, which influenced them, did not think proper to place the officers of the Government in the power of the two branches of the Legislature, further than the tenure of their office. Nor did they choose to permit the tenure of their offices to depend upon passions or prejudices of jurors. The very clause in the Constitution, of itself, shows that it was intended the persons impeached and removed from office might still be indicted and punished for the same offence, else the provision would have been not only nugatory, but a reflection on the enlightened body who framed the Constitution; since no person ever could have dreamed that a conviction on impeachment and a removal from office, in consequence, for one offence, could prevent the same person from being indicted and punished for another and different offence. Id. at 432.
4 We discuss the Story passage infra pp. 126-27 & n 44.
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August 18, 2000 Memorandum Opinion for the Attorney General, continued ...
I. The 1973 Justice Department Documents, continued ...
B. The 1973 OLC Memorandum
In 1973, this Office prepared a memorandum on the amenability of the President, the Vice President, and other civil officers to federal criminal prosecution while in office.
The memorandum’s central conclusion was that all federal officers and the Vice President, but not the President, are amenable to federal prosecution while in office.
The memorandum did not discuss at any length the question whether a former President who has been acquitted by the Senate may be indicted and criminally tried.
It did spend considerable time, however, refuting the notion that the Impeachment Judgment Clause required officers to be impeached by the House and tried by the Senate before they may be criminally prosecuted.
Instead, the memorandum stated, “(t)he purpose of this clause . . . is to permit criminal prosecution in spite of the prior adjudication by the Senate, i.e., to forestall a double jeopardy argument.” Memorandum from Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel, Re: Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution While in Office at 3 (Sept. 24, 1973) (“1973 OLC Memo”).
In support of that claim, the memorandum cited a passage from the argument made by Luther Martin in his role as defense counsel in the impeachment trial of Justice Chase in 1805 3 and quoted a passage from Justice Joseph Story’s 1833 Commentaries on the Constitution. 4
Story, the memorandum suggested, took the position that neither conviction nor acquittal by the Senate would bar a criminal prosecution. Id. at 2 n.2.
The reasoning supporting our embrace of the position we attributed to Story was
contained in a single sentence in a footnote: “The conclusion that acquittal by the Senate does not bar criminal prosecution follows from the consideration that such an acquittal may be based . . . onjurisdictional grounds, e.g., that the defendant is not an officer of the United States in the constitutional sense, or on discretionary grounds, e.g., that the defendant no longer is an officer of the United States and unlikely to be reappointed or reelected, or on grounds which are partly jurisdictional and partly substantive, e.g., that the offense was not of an impeachable nature.” Id.
The memorandum thus rested its conclusion on a somewhat elaborated version of the third argument made in the United States’s brief in the Agnew case.
3 The citation is 14 Annals of Congress 432 (1805). Martin had been a delegate from Maryland at the Constitutional Convention. The memorandum cited a portion of Martin’s speech at the Chase trial for the proposition that “Article1, section 3, clause 7 was designed to overcome a claim of double jeopardy rather than to require that impeachment must precede any criminal proceedings.” 1973 OLC Memo at 3. In support of his larger argument that impeachable offenses were limited to indictable offenses, Martin imputed to the House managers the view that “a judge is only removable from office on account of crimes committed by him as a judge, and not for those for which he would be punishable as a private individual.” 14 Annals of Cong 431 (1805). If that were true, Martin argued, a judge might be convicted and punished in the courts for burglary or receiving stolen goods and “yet he could not be removed from office, because the offence was not committed by him in his judicial capacity, and because he could not be punished twice for the same offence.’’ Id. That implication, Martin explained, must be wrong. The truth is, the framers of the Constitution, for many reasons, which influenced them, did not think proper to place the officers of the Government in the power of the two branches of the Legislature, further than the tenure of their office. Nor did they choose to permit the tenure of their offices to depend upon passions or prejudices of jurors. The very clause in the Constitution, of itself, shows that it was intended the persons impeached and removed from office might still be indicted and punished for the same offence, else the provision would have been not only nugatory, but a reflection on the enlightened body who framed the Constitution; since no person ever could have dreamed that a conviction on impeachment and a removal from office, in consequence, for one offence, could prevent the same person from being indicted and punished for another and different offence. Id. at 432.
4 We discuss the Story passage infra pp. 126-27 & n 44.
TO BE CONTINUED ...
Re: ON INDICTMENTS OF FORMER PRESIDENTS
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
There appear to be two possible bases in the Constitution for the claim that a former President who was acquitted by the Senate while he was in office may not be criminally prosecuted for the same offenses: the Impeachment Judgment Clause and the Double Jeopardy Clause.
We will consider each in turn.
A. The Impeachment Judgment Clause
The Argument That Senate Acquittal Bars Subsequent Prosecution
The Constitution itself expressly authorizes indictment and trial of officials who have been impeached and convicted.
As noted above, Article I, Section 3, Clause 7 of the Constitution states: 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.
The clause is ambiguous when it comes to officials who have been impeached and not convicted.
Some commentators have argued that the reference to “the Party convicted” implies that the exception to the double jeopardy principle created by the clause does not extend to parties who are impeached but not convicted. 5
Judge Alcee Hastings made the same argument in challenging the Senate’s jurisdiction to try him on impeachment after he had been tried and acquitted in a federal criminal prosecution. 6
This argument rests on the well-known canon of statutory construction, expressio unius est exclusio alterius, “the expression of one is the exclusion of others.” United States v. Wells Fargo Bank, 485 U.S. 351, 357 (1988).
5 See, Joseph Isenberg, Impeachment and Presidential Immunity from Judicial Process, 18 Yale L. & Pol’y Rev 53, 92-93 (1999), Jay S. Bybee, Who Executes the Executioner? Impeachment, Indictment and Other Alternatives to Assassination, 2 NEXUS 53, 58-59, 63 (1997).
6 See, Impeachment ofJudge Alcee L Hastings: Motions of Judge Alcee L Hastings to Dismiss Articles I-XV and XVII of the Articles of Impeachment Against Him and Supporting and Opposing Memoranda, S Doc. No 101— 4, at 48-57 (1989) (“Hastings Motions to Dismiss”).
TO BE CONTINUED ...
August 18, 2000 Memorandum Opinion for the Attorney General, continued ...
II. The Arguments Considered in Greater Depth
There appear to be two possible bases in the Constitution for the claim that a former President who was acquitted by the Senate while he was in office may not be criminally prosecuted for the same offenses: the Impeachment Judgment Clause and the Double Jeopardy Clause.
We will consider each in turn.
A. The Impeachment Judgment Clause
The Argument That Senate Acquittal Bars Subsequent Prosecution
The Constitution itself expressly authorizes indictment and trial of officials who have been impeached and convicted.
As noted above, Article I, Section 3, Clause 7 of the Constitution states: 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.
The clause is ambiguous when it comes to officials who have been impeached and not convicted.
Some commentators have argued that the reference to “the Party convicted” implies that the exception to the double jeopardy principle created by the clause does not extend to parties who are impeached but not convicted. 5
Judge Alcee Hastings made the same argument in challenging the Senate’s jurisdiction to try him on impeachment after he had been tried and acquitted in a federal criminal prosecution. 6
This argument rests on the well-known canon of statutory construction, expressio unius est exclusio alterius, “the expression of one is the exclusion of others.” United States v. Wells Fargo Bank, 485 U.S. 351, 357 (1988).
5 See, Joseph Isenberg, Impeachment and Presidential Immunity from Judicial Process, 18 Yale L. & Pol’y Rev 53, 92-93 (1999), Jay S. Bybee, Who Executes the Executioner? Impeachment, Indictment and Other Alternatives to Assassination, 2 NEXUS 53, 58-59, 63 (1997).
6 See, Impeachment ofJudge Alcee L Hastings: Motions of Judge Alcee L Hastings to Dismiss Articles I-XV and XVII of the Articles of Impeachment Against Him and Supporting and Opposing Memoranda, S Doc. No 101— 4, at 48-57 (1989) (“Hastings Motions to Dismiss”).
TO BE CONTINUED ...
Re: ON INDICTMENTS OF FORMER PRESIDENTS
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 ...
The Impeachment Judgment Clause says “the party convicted,” not “the party, whether convicted or acquitted.”
Its failure to mention parties acquitted by the Senate implies that they, unlike convicted parties, are not subject to regular criminal prosecution.
This argument has some force.
The Court has regularly relied on the expressio unius canon. See, e.g., Custis v. United States, 511 U.S. 485, 491-492 (1994); Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993); National R.R. Passenger Corp. v. National Ass’n of R.R. Passengers, 414 U.S. 453, 457 (1974).
Although the canon has most often been applied to statutes, rules, and contracts, the Court has used it as well in analyzing constitutional provisions. See, e.g., U.S. Terms Limit, Inc. v. Thornton, 514 U.S. 779, 793 n.9 (1995) (qualifications for Representatives specified in the Qualifications Clause are exclusive).
Indeed, one might argue that the canon has particular strength when applied to constitutional provisions because, as the Court has noted, those provisions are likely to be drawn with particular care. See, e.g., Township of Pine Grove v. Talcott, 86 U.S. (19 Wall.) 666, 674-75 (1873) (“(t)he case as to the [Michigan] constitution is a proper one for the application of the maxim, ‘Expressio unius . . .’. The instrument is drawn with ability, care, and fulness of details” ).
In addition, if the Impeachment Judgment Clause is understood as creating an exception to the general background rule of a prohibition on successive prosecutions, the expressio unius canon is particularly apt since it has often been wielded to support the conclusion that when a statute identifies specific exceptions to a general rule it by implication prohibits other exceptions. See, e.g., Leatherman, 507 U.S. at 168; TVA v. Hill, 437 U.S. 153, 188 (1978); City of Walla Walla v. Walla Walla Water Co., 172 U.S. 1, 22 (1898); Arthur v. Cumming, 91 U.S. 362, 363 (1875); Sturges v. Collector, 79 U.S. (12 Wall.) 19, 27 (1870).
TO BE CONTINUED ...
August 18, 2000 Memorandum Opinion for the Attorney General, continued ...
II. The Arguments Considered in Greater Depth, continued ...
The Impeachment Judgment Clause says “the party convicted,” not “the party, whether convicted or acquitted.”
Its failure to mention parties acquitted by the Senate implies that they, unlike convicted parties, are not subject to regular criminal prosecution.
This argument has some force.
The Court has regularly relied on the expressio unius canon. See, e.g., Custis v. United States, 511 U.S. 485, 491-492 (1994); Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993); National R.R. Passenger Corp. v. National Ass’n of R.R. Passengers, 414 U.S. 453, 457 (1974).
Although the canon has most often been applied to statutes, rules, and contracts, the Court has used it as well in analyzing constitutional provisions. See, e.g., U.S. Terms Limit, Inc. v. Thornton, 514 U.S. 779, 793 n.9 (1995) (qualifications for Representatives specified in the Qualifications Clause are exclusive).
Indeed, one might argue that the canon has particular strength when applied to constitutional provisions because, as the Court has noted, those provisions are likely to be drawn with particular care. See, e.g., Township of Pine Grove v. Talcott, 86 U.S. (19 Wall.) 666, 674-75 (1873) (“(t)he case as to the [Michigan] constitution is a proper one for the application of the maxim, ‘Expressio unius . . .’. The instrument is drawn with ability, care, and fulness of details” ).
In addition, if the Impeachment Judgment Clause is understood as creating an exception to the general background rule of a prohibition on successive prosecutions, the expressio unius canon is particularly apt since it has often been wielded to support the conclusion that when a statute identifies specific exceptions to a general rule it by implication prohibits other exceptions. See, e.g., Leatherman, 507 U.S. at 168; TVA v. Hill, 437 U.S. 153, 188 (1978); City of Walla Walla v. Walla Walla Water Co., 172 U.S. 1, 22 (1898); Arthur v. Cumming, 91 U.S. 362, 363 (1875); Sturges v. Collector, 79 U.S. (12 Wall.) 19, 27 (1870).
TO BE CONTINUED ...
Re: ON INDICTMENTS OF FORMER PRESIDENTS
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 ...
The expressio unius argument gains plausibility from a comparison of the federal Impeachment Judgment Clause with the equivalent clauses in state constitutions.
Of the forty-five state constitutions that authorize impeachment and limit the punishment upon conviction, all forty-five provide for further prosecution in the courts.
In doing so, however, only fifteen follow the federal wording of “the party convicted” 7; thirty, by contrast, expressly provide that the party impeached is liable to criminal proceedings regardless of the outcome of the legislative trial. 8
Moreover, express provisions concerning those acquitted in impeachment trials are not a recent innovation.
The first state constitution to include a reference making clear that an impeachment acquittal created no bar to criminal prosecution was the Pennsylvania charter of 1790. 9
That State’s constitution, like many others, says that “the party, whether convicted or acquitted” is liable to prosecution in the courts. 10
Perhaps most telling is the New York constitution, the original 1777 version of which contained language strikingly similar to that later included in the U.S. Constitution and which may well have been the source of the wording for the federal clause. 11
In the mid-nineteenth century, the New York charter was amended to refer to “the party impeached” rather than “the party convicted” precisely because of a concern that the latter phrase might be understood to give immunity from criminal prosecution to those who had been impeached and acquitted. 12
Finally, the expressio unius argument rests on more than the wording of the Impeachment Judgment Clause.
The framers might well have had a principled basis for treating acquittals and convictions by the Senate distinctly.
7 See Conn Const, art 9, §3; Del Const, art 6, §2; Haw Const art. Ill, § 19; Ky Const §68; Mass Const ch. I, §2, art 8, Mich. Const, art. 11, §7, para 4, Minn. Const, art. 8, §2, Miss Const. §51, N.H. Const art.39, N.J Const, art. 7, §3, para 3, RI Const art. XI, §3, Tex. Const, art. 15, §4, Vt. Const. §58; Va. Const, art IV, § 17; W Va. Const, art IV, §9
8 See Ala. Const, art. 7, § 176, Alaska Const, art. 2, §20, Ariz. Const, art. 7, pt 2, §2; Ark Const art 15, §1; Cal. Const art IV, §18; Colo Const art. XIII, §2, Fla. Const, art. III, §17; Ga Const art 3, §7, para 3; Idaho Const art V, §3; 111 Const art. IV, §14, Iowa Const art. III, §20, La Const, art. X, §24, Me. Const, art III, §7, Mo Const art. VII, §3; Mont Const art V, §13, Nev Const art 7, §2, N.M. Const, art IV, §36; N.Y. Const art. VI, §24, N.C. Const, art. IV, §4, N.D. Const, art XI, §10, Okl Const art. VIII, §5; Penn Const, art VI, §6, SC Const art XV, §3, SD Const, art. XVI, §3; Tenn Const, art. V, §4, Utah Const art VI, §19; Wash Const art.V, §2; W.Va Const, art IV, §9; Wisc. Const art VII, §1, Wyo. Const §18. We have found references to the difference between the wording of the federal clause and that of many of the state constitutions in only two judicial decisions, one of which relies upon the other State ex. rel. Christian v Rudd, 302 So2d 821,825 (Fla Dist. Ct. App 1974), vacated in part on other grounds, Rudd v State ex. rel. Christian, 310 So.2d 295 (Fla. 1975), In re Investigation by Dauphin County Grand Jury, 2 A2d 804, 808 (Pa 1938). In the Pennsylvania case, a district attorney began a grand jury investigation of several state officials, the state House of Representatives initiated an impeachment investigation of the same officials, and the House investigating committee then sought a writ of prohibition preventing the grand jury investigation from going forward. The legislative committee argued, among other things, that the state constitution required impeachment to precede criminal prosecution. The court rejected that argument, stating: The delegation to the House of Representatives of the sole power of impeachment did not have the effect of depriving the court of its power to continue the investigation in the existing proceeding of crimes constituting misdemeanor in office. This is emphasized by the provision in section 3 of the sixth article, P.S. Const art 6, §3, that “the person accused [in impeachment proceedings], whether convicted or acquitted, shall nevertheless be liable to indictment, trial, judgment and punishment according to law.” The two proceedings are independent of each other and, as the Declaration of Rights shows, were intended to be kept independent proceedings. The provision that the accused shall be liable to indictment “whether convicted or acquitted” does not require halting criminal proceedings until after the impeachment. The provision was probably inserted so that there might be no doubt that the result of a trial in either proceeding should not be a bar to the trial in the other. Petitioner refers to the corresponding provision of the federal constitution and quotes from number LXV of The Federalist, to support the argument that the impeachment trial should precede the criminal proceeding. But the federal constitution, U.S.C.A. Const art 1, §3, cl. 7 deals only with conviction, not with conviction or acquittal. “But the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Our constitution subjects the accused to prosecution regardless of whether “convicted or acquitted” in the impeachment trial, thereby indicating that, as the result of the impeachment trial should be immaterial in its effect on the criminal trial, there would be no reason for delaying the criminal proceeding. Id at 808. The Florida case similarly involved a state official’s claim that impeachment must precede indictment. See State ex rel Christian v. Rudd, 302 So.2d at 824-259; See 5 Francis Newton Thorpe, The Federal and State Constitutions 3097 (1909; reprint 1993) (“Thorpe”). The clause was added at the suggestion of James Wilson, who had been a delegate to both the federal constitutional convention and the Pennsylvania ratifying convention. Pennsylvania adopted its first state constitution in 1776. In1789, the state legislature called a convention to draft a new charter. See generally Joseph S. Foster, The Politics of Ideology: The Pennsylvania Constitutional Convention of 1789-1790, 59 Penn Hist. 122 (1992). The convention met for three months, offered its draft constitution for popular discussion, then met again to finalize the document. The initial draft upon which the convention’s first session based its discussions used the phrase “the party convicted” in its impeachment judgment clause. See Minutes of the Convention of the Commonwealth of Pennsylvania, Which Commenced at Philadelphia, on Tuesday the Twenty-fourth Day of November, in the Year of Our Lord One Thousand Seven Hundred and Eighty-nine, for the Purpose of Reviewing, and if They See Occasion, Altering and Amending, the Constitution of this State 39-40 (1789). The convention approved that language and included it in the document circulated for popular discussion. See id. at 64, 96-97, 130. When the convention re-convened, Wilson moved successfully to change the language to “the party, whether convicted or acquitted,” and that change survived a later challenge by a very lopsided vote. See id at 155 (Wilson motion and approval without division), 175 (rejection of motion to strike the amended sentence rejected 51-7).
10 See also Ariz Const art 7, pt 2, §2, Cal. Const art IV, §18 (“but the person convicted or acquitted remains subject to criminal punishment according to law”), Colo. Const, art. XIII, §2; Fla. Const, art. III, §17 (“conviction or acquittal shall not affect the civil or criminal responsibility of the officer”); III Const art. IV, §14; Iowa Const art III, §20; Me Const art. III, §7; Mont Const art. V, §13, Nev Const art. 7, §2; NM Const art IV, §36; N.D. Const, art XI, §10; SD Const, art. XVI, §3; Utah Const, art. VI, §19; Wash. Const, art. V, §2; Wyo. Const §18
11 See infra 121-22 & n.25.
12 The change was made at the state constitutional convention of 1846. The 1777 constitution had been replaced in 1821, but the phrase “the party convicted” was retained. See 5 Thorpe, supra at 2647. The relevant portion of the draft constitution submitted to the 1846 convention also used “the party convicted.” A delegate from Orange County, John W. Brown, moved the amendment changing the word “convicted” to “impeached.” Several delegates spoke in favor of the proposed amendment. A Mr. Worden observed that there “certainly was a difficulty, as a party tried on articles of impeachment and acquitt[ed], might throw himself on the great principle that a man shall not twice be put in jeopardy for the same offence and he might plead his acquittal as a bar to an indictment in a court of law.” S. Croswell & R. Sutton, Debates and Proceedings in the New-York State Convention, for the Revision of the Constitution 434—437 (1846); Journal of the Convention of the State of New-York, Begun and Held at the Capitol in the City of Albany, on the First Day of June, 1846, at 15, 734—35 (1846).
TO BE CONTINUED ...
August 18, 2000 Memorandum Opinion for the Attorney General, continued ...
II. The Arguments Considered in Greater Depth, continued ...
The expressio unius argument gains plausibility from a comparison of the federal Impeachment Judgment Clause with the equivalent clauses in state constitutions.
Of the forty-five state constitutions that authorize impeachment and limit the punishment upon conviction, all forty-five provide for further prosecution in the courts.
In doing so, however, only fifteen follow the federal wording of “the party convicted” 7; thirty, by contrast, expressly provide that the party impeached is liable to criminal proceedings regardless of the outcome of the legislative trial. 8
Moreover, express provisions concerning those acquitted in impeachment trials are not a recent innovation.
The first state constitution to include a reference making clear that an impeachment acquittal created no bar to criminal prosecution was the Pennsylvania charter of 1790. 9
That State’s constitution, like many others, says that “the party, whether convicted or acquitted” is liable to prosecution in the courts. 10
Perhaps most telling is the New York constitution, the original 1777 version of which contained language strikingly similar to that later included in the U.S. Constitution and which may well have been the source of the wording for the federal clause. 11
In the mid-nineteenth century, the New York charter was amended to refer to “the party impeached” rather than “the party convicted” precisely because of a concern that the latter phrase might be understood to give immunity from criminal prosecution to those who had been impeached and acquitted. 12
Finally, the expressio unius argument rests on more than the wording of the Impeachment Judgment Clause.
The framers might well have had a principled basis for treating acquittals and convictions by the Senate distinctly.
7 See Conn Const, art 9, §3; Del Const, art 6, §2; Haw Const art. Ill, § 19; Ky Const §68; Mass Const ch. I, §2, art 8, Mich. Const, art. 11, §7, para 4, Minn. Const, art. 8, §2, Miss Const. §51, N.H. Const art.39, N.J Const, art. 7, §3, para 3, RI Const art. XI, §3, Tex. Const, art. 15, §4, Vt. Const. §58; Va. Const, art IV, § 17; W Va. Const, art IV, §9
8 See Ala. Const, art. 7, § 176, Alaska Const, art. 2, §20, Ariz. Const, art. 7, pt 2, §2; Ark Const art 15, §1; Cal. Const art IV, §18; Colo Const art. XIII, §2, Fla. Const, art. III, §17; Ga Const art 3, §7, para 3; Idaho Const art V, §3; 111 Const art. IV, §14, Iowa Const art. III, §20, La Const, art. X, §24, Me. Const, art III, §7, Mo Const art. VII, §3; Mont Const art V, §13, Nev Const art 7, §2, N.M. Const, art IV, §36; N.Y. Const art. VI, §24, N.C. Const, art. IV, §4, N.D. Const, art XI, §10, Okl Const art. VIII, §5; Penn Const, art VI, §6, SC Const art XV, §3, SD Const, art. XVI, §3; Tenn Const, art. V, §4, Utah Const art VI, §19; Wash Const art.V, §2; W.Va Const, art IV, §9; Wisc. Const art VII, §1, Wyo. Const §18. We have found references to the difference between the wording of the federal clause and that of many of the state constitutions in only two judicial decisions, one of which relies upon the other State ex. rel. Christian v Rudd, 302 So2d 821,825 (Fla Dist. Ct. App 1974), vacated in part on other grounds, Rudd v State ex. rel. Christian, 310 So.2d 295 (Fla. 1975), In re Investigation by Dauphin County Grand Jury, 2 A2d 804, 808 (Pa 1938). In the Pennsylvania case, a district attorney began a grand jury investigation of several state officials, the state House of Representatives initiated an impeachment investigation of the same officials, and the House investigating committee then sought a writ of prohibition preventing the grand jury investigation from going forward. The legislative committee argued, among other things, that the state constitution required impeachment to precede criminal prosecution. The court rejected that argument, stating: The delegation to the House of Representatives of the sole power of impeachment did not have the effect of depriving the court of its power to continue the investigation in the existing proceeding of crimes constituting misdemeanor in office. This is emphasized by the provision in section 3 of the sixth article, P.S. Const art 6, §3, that “the person accused [in impeachment proceedings], whether convicted or acquitted, shall nevertheless be liable to indictment, trial, judgment and punishment according to law.” The two proceedings are independent of each other and, as the Declaration of Rights shows, were intended to be kept independent proceedings. The provision that the accused shall be liable to indictment “whether convicted or acquitted” does not require halting criminal proceedings until after the impeachment. The provision was probably inserted so that there might be no doubt that the result of a trial in either proceeding should not be a bar to the trial in the other. Petitioner refers to the corresponding provision of the federal constitution and quotes from number LXV of The Federalist, to support the argument that the impeachment trial should precede the criminal proceeding. But the federal constitution, U.S.C.A. Const art 1, §3, cl. 7 deals only with conviction, not with conviction or acquittal. “But the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Our constitution subjects the accused to prosecution regardless of whether “convicted or acquitted” in the impeachment trial, thereby indicating that, as the result of the impeachment trial should be immaterial in its effect on the criminal trial, there would be no reason for delaying the criminal proceeding. Id at 808. The Florida case similarly involved a state official’s claim that impeachment must precede indictment. See State ex rel Christian v. Rudd, 302 So.2d at 824-259; See 5 Francis Newton Thorpe, The Federal and State Constitutions 3097 (1909; reprint 1993) (“Thorpe”). The clause was added at the suggestion of James Wilson, who had been a delegate to both the federal constitutional convention and the Pennsylvania ratifying convention. Pennsylvania adopted its first state constitution in 1776. In1789, the state legislature called a convention to draft a new charter. See generally Joseph S. Foster, The Politics of Ideology: The Pennsylvania Constitutional Convention of 1789-1790, 59 Penn Hist. 122 (1992). The convention met for three months, offered its draft constitution for popular discussion, then met again to finalize the document. The initial draft upon which the convention’s first session based its discussions used the phrase “the party convicted” in its impeachment judgment clause. See Minutes of the Convention of the Commonwealth of Pennsylvania, Which Commenced at Philadelphia, on Tuesday the Twenty-fourth Day of November, in the Year of Our Lord One Thousand Seven Hundred and Eighty-nine, for the Purpose of Reviewing, and if They See Occasion, Altering and Amending, the Constitution of this State 39-40 (1789). The convention approved that language and included it in the document circulated for popular discussion. See id. at 64, 96-97, 130. When the convention re-convened, Wilson moved successfully to change the language to “the party, whether convicted or acquitted,” and that change survived a later challenge by a very lopsided vote. See id at 155 (Wilson motion and approval without division), 175 (rejection of motion to strike the amended sentence rejected 51-7).
10 See also Ariz Const art 7, pt 2, §2, Cal. Const art IV, §18 (“but the person convicted or acquitted remains subject to criminal punishment according to law”), Colo. Const, art. XIII, §2; Fla. Const, art. III, §17 (“conviction or acquittal shall not affect the civil or criminal responsibility of the officer”); III Const art. IV, §14; Iowa Const art III, §20; Me Const art. III, §7; Mont Const art. V, §13, Nev Const art. 7, §2; NM Const art IV, §36; N.D. Const, art XI, §10; SD Const, art. XVI, §3; Utah Const, art. VI, §19; Wash. Const, art. V, §2; Wyo. Const §18
11 See infra 121-22 & n.25.
12 The change was made at the state constitutional convention of 1846. The 1777 constitution had been replaced in 1821, but the phrase “the party convicted” was retained. See 5 Thorpe, supra at 2647. The relevant portion of the draft constitution submitted to the 1846 convention also used “the party convicted.” A delegate from Orange County, John W. Brown, moved the amendment changing the word “convicted” to “impeached.” Several delegates spoke in favor of the proposed amendment. A Mr. Worden observed that there “certainly was a difficulty, as a party tried on articles of impeachment and acquitt[ed], might throw himself on the great principle that a man shall not twice be put in jeopardy for the same offence and he might plead his acquittal as a bar to an indictment in a court of law.” S. Croswell & R. Sutton, Debates and Proceedings in the New-York State Convention, for the Revision of the Constitution 434—437 (1846); Journal of the Convention of the State of New-York, Begun and Held at the Capitol in the City of Albany, on the First Day of June, 1846, at 15, 734—35 (1846).
TO BE CONTINUED ...
Re: ON INDICTMENTS OF FORMER PRESIDENTS
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 ...
The American rule of double jeopardy derives from the common law pleas of auterfois acquit, formerly acquitted, and auterfois convict, formerly convicted. 13
As Blackstone explained, both pleas are grounded in the “universal maxim of the common law of England, that no man is to be brought into jeopardy of his life, more than once, for the same offence,” 14 and the Double Jeopardy Clause, in giving that maxim constitutional stature, embraces the protections both against re-prosecution following acquittal and against re-prosecution following conviction. 15
But, as the Supreme Court has explained, the rationales for the two components of the double jeopardy rule are somewhat different.
“The primary purpose of foreclosing a second prosecution after conviction . . . is to prevent a defendant from being subjected to multiple punishments for the same offense.” Justices of Boston Mun.Court v. Lydon, 466 U.S. 294, 307 (1984).
By contrast, the “primary goal of barring reprosecution after acquittal is to prevent the State from mounting successive prosecutions and thereby wearing down the defendant.” Id.
“The underlying idea,’’ the Court has repeatedly affirmed, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
Green v. United States, 355 U.S. 184, 187-88 (1957).
The central innovation of the Impeachment Judgment Clause, as explained more fully below, was the restriction on the types of sanctions the Senate could impose when it convicted someone upon impeachment.
Breaking with English practice, in which the House of Lords could impose regular criminal punishments up to death, the framers provided that the Senate could do no more than remove an offender from office and disqualify him from future federal officeholding.
The framers might reasonably have concluded that their innovative restriction of impeachment sanctions justified a relaxation of the normal ban on multiple punishments — and thus a relaxation of the former jeopardy principle in the case of Senate convictions — in order to ensure that federal officials did not escape the punishments suffered by offenders against the criminal law who held no federal office.
No similar relaxation, they might have reasoned, was warranted in the case of successive trials following acquittals.
The central rationales of the ban on successive trials — the unfairness of the government’s repeatedly subjecting an individual to the ordeal and expense of prosecution and the unfairness of giving the government a chance to hone its case and thus to secure the conviction of an innocent party — arguably still applied.
Thus the use of the phrase “the party convicted” in a restrictive sense might well have had a perfectly reasonable basis in the underlying concerns of the double jeopardy rule. 16
Moreover, if the Impeachment Judgment Clause is seen not as addressing double jeopardy concerns per se, but rather as providing protections for officers accused of wrongdoing, its silence about parties acquitted by the Senate makes sense and suggests the framers thought acquittal by the Senate would bar criminal prosecution.
13 The best histories of the development of the double jeopardy principle in English law are Martin Friedland, Double Jeopardy 5-15 (1969) and Jill Hunter, The Development of the Rule Against Double Jeopardy, 5 J. Legal Hist. 3 (1984); see also Jay A. Sigler, Double Jeopardy 1-37 (1969), Sigler, A History of Double Jeopardy, 7 Am. J. Legal Hist. 283 (1963), Manon Kirk, "Jeopardy" During the Period of the Year Books, 82 U. Pa. L. Rev. 602 (1934), George C. Thomas III, Double Jeopardy 71-86 (1998). For some of the Supreme Court's leading discussions of double jeopardy history, see United States v. Wilson, 420 U.S 332, 339-42 (1975); Benton v Maryland, 395 US 784, 795-96 (1969), Bartkus v. Illinois, 359 U.S. 121, 151-55 (1959) (Black, J., dissenting)
14 4 William Blackstone, Commentaries on the Laws of England 329 (1772, reprint 1967) (“Blackstone’s Commentaries”), see also 2 Hawkins, supra chs 35-36, at 523-37, Thomas Wood, An Institute of the Laws of England 664-65 (8th ed 1754), 2 Matthew Hale, The History of the Pleas of the Crown chs 31-32, at 240-55 (1st Am. ed 1847)
15 “(N)or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend V.
16 One might perhaps find evidence of this distinction between finality of acquittals and the dangers of successive trials, on the one hand, and finality of convictions and the dangers of multiple punishments, on the other, in the New York ratifying convention’s proposal for a federal double jeopardy clause: “That no Person ought to be put twice in Jeopardy of Life or Limb for one and the same Offence, nor, unless in case of impeachment, be punished more than once for the same Offence” 4 Bernard Schwartz, Roots of the Bill of Rights 912 (1971).
TO BE CONTINUED ...
August 18, 2000 Memorandum Opinion for the Attorney General, continued ...
II. The Arguments Considered in Greater Depth, continued ...
The American rule of double jeopardy derives from the common law pleas of auterfois acquit, formerly acquitted, and auterfois convict, formerly convicted. 13
As Blackstone explained, both pleas are grounded in the “universal maxim of the common law of England, that no man is to be brought into jeopardy of his life, more than once, for the same offence,” 14 and the Double Jeopardy Clause, in giving that maxim constitutional stature, embraces the protections both against re-prosecution following acquittal and against re-prosecution following conviction. 15
But, as the Supreme Court has explained, the rationales for the two components of the double jeopardy rule are somewhat different.
“The primary purpose of foreclosing a second prosecution after conviction . . . is to prevent a defendant from being subjected to multiple punishments for the same offense.” Justices of Boston Mun.Court v. Lydon, 466 U.S. 294, 307 (1984).
By contrast, the “primary goal of barring reprosecution after acquittal is to prevent the State from mounting successive prosecutions and thereby wearing down the defendant.” Id.
“The underlying idea,’’ the Court has repeatedly affirmed, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
Green v. United States, 355 U.S. 184, 187-88 (1957).
The central innovation of the Impeachment Judgment Clause, as explained more fully below, was the restriction on the types of sanctions the Senate could impose when it convicted someone upon impeachment.
Breaking with English practice, in which the House of Lords could impose regular criminal punishments up to death, the framers provided that the Senate could do no more than remove an offender from office and disqualify him from future federal officeholding.
The framers might reasonably have concluded that their innovative restriction of impeachment sanctions justified a relaxation of the normal ban on multiple punishments — and thus a relaxation of the former jeopardy principle in the case of Senate convictions — in order to ensure that federal officials did not escape the punishments suffered by offenders against the criminal law who held no federal office.
No similar relaxation, they might have reasoned, was warranted in the case of successive trials following acquittals.
The central rationales of the ban on successive trials — the unfairness of the government’s repeatedly subjecting an individual to the ordeal and expense of prosecution and the unfairness of giving the government a chance to hone its case and thus to secure the conviction of an innocent party — arguably still applied.
Thus the use of the phrase “the party convicted” in a restrictive sense might well have had a perfectly reasonable basis in the underlying concerns of the double jeopardy rule. 16
Moreover, if the Impeachment Judgment Clause is seen not as addressing double jeopardy concerns per se, but rather as providing protections for officers accused of wrongdoing, its silence about parties acquitted by the Senate makes sense and suggests the framers thought acquittal by the Senate would bar criminal prosecution.
13 The best histories of the development of the double jeopardy principle in English law are Martin Friedland, Double Jeopardy 5-15 (1969) and Jill Hunter, The Development of the Rule Against Double Jeopardy, 5 J. Legal Hist. 3 (1984); see also Jay A. Sigler, Double Jeopardy 1-37 (1969), Sigler, A History of Double Jeopardy, 7 Am. J. Legal Hist. 283 (1963), Manon Kirk, "Jeopardy" During the Period of the Year Books, 82 U. Pa. L. Rev. 602 (1934), George C. Thomas III, Double Jeopardy 71-86 (1998). For some of the Supreme Court's leading discussions of double jeopardy history, see United States v. Wilson, 420 U.S 332, 339-42 (1975); Benton v Maryland, 395 US 784, 795-96 (1969), Bartkus v. Illinois, 359 U.S. 121, 151-55 (1959) (Black, J., dissenting)
14 4 William Blackstone, Commentaries on the Laws of England 329 (1772, reprint 1967) (“Blackstone’s Commentaries”), see also 2 Hawkins, supra chs 35-36, at 523-37, Thomas Wood, An Institute of the Laws of England 664-65 (8th ed 1754), 2 Matthew Hale, The History of the Pleas of the Crown chs 31-32, at 240-55 (1st Am. ed 1847)
15 “(N)or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend V.
16 One might perhaps find evidence of this distinction between finality of acquittals and the dangers of successive trials, on the one hand, and finality of convictions and the dangers of multiple punishments, on the other, in the New York ratifying convention’s proposal for a federal double jeopardy clause: “That no Person ought to be put twice in Jeopardy of Life or Limb for one and the same Offence, nor, unless in case of impeachment, be punished more than once for the same Offence” 4 Bernard Schwartz, Roots of the Bill of Rights 912 (1971).
TO BE CONTINUED ...
Re: ON INDICTMENTS OF FORMER PRESIDENTS
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 ...
The Impeachment Judgment Clause provides protection most directly by depriving the Senate of the ability to impose regular criminal punishments, but it also ensures that even those convicted by the Senate will get a regular trial, with a jury and other guarantees, rather than having additional punishments imposed in some more summary proceeding.
As Hamilton put it in Federalist 55, the guarantee of trial in the courts following trial in the Senate provides “the double security, intended them by a double trial.” 17
Once the defendant-protecting function of the Impeachment Judgment Clause is recognized, its silence about acquitted parties is most reasonably understood as reflecting the assumption that such parties, like those acquitted in the courts, would not be subject to further prosecution.
Even apart from the special functions of the Impeachment Judgment Clause, the framers might have considered protection of the finality of acquittals more fundamental than protection of the finality of convictions. 18
The one state constitution in the revolutionary period that contained a double jeopardy clause only barred re-trials when there had been an acquittal, 19 as did one of the two state proposals for a federal double jeopardy clause. 20
In the case law that has grown up under the federal Double Jeopardy Clause, the Supreme Court has recognized that “(a)n acquittal is accorded special weight.” United States v. DiFrancesco, 449 U.S. 117, 129 (1980); see Tibbs v. Florida, 457 U.S. 31, 41 (1982) (“the Double Jeopardy Clause attaches special weight to judgments of acquittal”). The special place of acquittals helps explain several asymmetries in double jeopardy law, notably that the Constitution places no restrictions on defendants’ ability to appeal convictions but prevents government appeals of acquittals that would lead to re-trial. See United States v. Wilson, 420 U.S. 332,345,352 (1975).
17 The Federalist,supra at 442.
18 Blackstone, for example, stated that “it is contrary to the genius and spirt of the law of England to suffer any man to be tried twice for the same offence in a criminal way, especially if acquitted upon the first trial.” 4 Blackstone’s Commentaries, supra at 256, see also Hunter, supra
19 The New Hampshire Constitution of 1784, in one of its few breaks with the Massachusetts Constitution of 1780, included a double jeopardy clause. It provided
“No subject shall be liable to be tried, after an acquittal, for the same crime or offence.” 4 Thorpe, supra at 2455.
20 The Maryland ratifying convention suggested adding the following clause.
“That there shall be a trial by jury in all criminal cases, according to the course of the proceedings in the state where the offence is committed, and that there be no appeal from matter of fact, or second trial after acquittal, but this provision shall not extend to such cases as may arise in the government of the land or naval forces.” 2 Debates in the Several State Conventions on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia, in 1787, at 550 (Jonathan Elliot, ed , 2d ed. 1836; reprint 1941) (“Elliot’s Debates”).
TO BE CONTINUED ...
August 18, 2000 Memorandum Opinion for the Attorney General, continued ...
II. The Arguments Considered in Greater Depth, continued ...
The Impeachment Judgment Clause provides protection most directly by depriving the Senate of the ability to impose regular criminal punishments, but it also ensures that even those convicted by the Senate will get a regular trial, with a jury and other guarantees, rather than having additional punishments imposed in some more summary proceeding.
As Hamilton put it in Federalist 55, the guarantee of trial in the courts following trial in the Senate provides “the double security, intended them by a double trial.” 17
Once the defendant-protecting function of the Impeachment Judgment Clause is recognized, its silence about acquitted parties is most reasonably understood as reflecting the assumption that such parties, like those acquitted in the courts, would not be subject to further prosecution.
Even apart from the special functions of the Impeachment Judgment Clause, the framers might have considered protection of the finality of acquittals more fundamental than protection of the finality of convictions. 18
The one state constitution in the revolutionary period that contained a double jeopardy clause only barred re-trials when there had been an acquittal, 19 as did one of the two state proposals for a federal double jeopardy clause. 20
In the case law that has grown up under the federal Double Jeopardy Clause, the Supreme Court has recognized that “(a)n acquittal is accorded special weight.” United States v. DiFrancesco, 449 U.S. 117, 129 (1980); see Tibbs v. Florida, 457 U.S. 31, 41 (1982) (“the Double Jeopardy Clause attaches special weight to judgments of acquittal”). The special place of acquittals helps explain several asymmetries in double jeopardy law, notably that the Constitution places no restrictions on defendants’ ability to appeal convictions but prevents government appeals of acquittals that would lead to re-trial. See United States v. Wilson, 420 U.S. 332,345,352 (1975).
17 The Federalist,supra at 442.
18 Blackstone, for example, stated that “it is contrary to the genius and spirt of the law of England to suffer any man to be tried twice for the same offence in a criminal way, especially if acquitted upon the first trial.” 4 Blackstone’s Commentaries, supra at 256, see also Hunter, supra
19 The New Hampshire Constitution of 1784, in one of its few breaks with the Massachusetts Constitution of 1780, included a double jeopardy clause. It provided
“No subject shall be liable to be tried, after an acquittal, for the same crime or offence.” 4 Thorpe, supra at 2455.
20 The Maryland ratifying convention suggested adding the following clause.
“That there shall be a trial by jury in all criminal cases, according to the course of the proceedings in the state where the offence is committed, and that there be no appeal from matter of fact, or second trial after acquittal, but this provision shall not extend to such cases as may arise in the government of the land or naval forces.” 2 Debates in the Several State Conventions on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia, in 1787, at 550 (Jonathan Elliot, ed , 2d ed. 1836; reprint 1941) (“Elliot’s Debates”).
TO BE CONTINUED ...