Special Counsel Jack Smith accused former President Donald Trump of causing the January 6, 2021, Capitol riot through his “lies” about the 2020 presidential election. To that end, he indicted Trump on Tuesday on four federal counts — one of which carries a potential death penalty. But the indictment itself offers nothing new; it reads like the report of the January 6 Committee, or the second impeachment resolution against Trump. It is barred, therefore, by the Constitution’s Double Jeopardy Clause.
This seems to be an interesting constitutional question. We are not talking about dual sovereigns here. We are talking about similar crimes to those alleged in Congress, for which Trump was not convicted. Can a president be criminally tried, after he was legislatively acquitted? https://t.co/wED95ejfWk
— Joel Pollak (@joelpollak) August 2, 2023
The Double Jeopardy Clause, contained within the Fifth Amendment, prevents any person from being tried twice in a federal court for the same crime. It does not prevent someone from being tried for the same crime in a state court and a federal court, because state and federal governments are considered to be “dual sovereigns.” But it applies to the federal level — and while an impeachment trial in the Senate is not a formal criminal proceeding, it has many of the same features as a federal criminal trial.
One of the Constitution’s Impeachment Clauses, in Article I, Section 3, Clause 7, does say that a person who has been convicted by the Senate in an impeachment trial can still face a federal criminal trial: “the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.” It does not say that a person who has been acquitted by the Senate can still be subject to the criminal process. Arguably, the Constitution intended to protect an acquitted official.
That seems even more convincing when considering that the standard of proof in the Senate is lower than in a criminal court — there is no requirement of proof beyond a reasonable doubt. As Alexander Hamilton himself observed in Federalist 65, a Senate trial risks of being decided by political factors. An acquittal there is harder to win than one in court. Therefore Trump is protected by the Double Jeopardy Clause. The new indictment should be quashed before trial, and the country should be spared the drama.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.
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