  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

T he C onstitu tio n p erm its a form er President to be indicted and tried for the sam e offenses for which
    he w as im p each ed by the H ouse o f Representatives and acquitted by the Senate.


                                                                                                  August 18, 2000

                       M e m o r a n d u m O p in io n fo r t h e A t t o r n e y G e n e r a l


   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 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 con­
cluded 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. Third, we summarize and consider the
significance o f the Hastings impeachment process and of the Senate trials of two

   1 In the context o f successive trials in the courts, double jeopardy claims often raise the preliminary question
w hether the offenses charged in the second proceeding are the same as those that formed the basis for the first
proceeding. See, e g ., United States v. Dixon, 509 U.S. 688, 696 (1993); Blockburger v United States, 284 U.S
299 (1932). W e 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


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

other federal judges who were impeached and convicted during the 1980s fol­
lowing 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 b riefs 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 B rie f’).
   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 Indict­
       ment, 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 impeach­
ments.” 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 conclu­
sion. 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 o f 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

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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 -1 0.2 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.

   B. The 1973 OLC Memorandum

  In 1973, this Office prepared a memorandum on the amenability of the Presi­
dent, 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

   2The 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 natu­
rally 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 swom, see, e .g , C n st v. Bretz, 437 U.S
28, 35-38 (1978), or, in a bench trial, the first witness has taken the stand, see, e g , id at 37 n.15 A t the ume
of the drafting o f the Constitution, the common la w rule was that jeopardy did not attach until the jury had rendered
a verdict. See, e.g., 2 W illiam Hawkins, A Treatise o f the Pleas o f the Crown 527 (6th ed 1787)) The brief appears
to treat an impeachment investigation and a rejection of articles o f impeachment by the House as a type of acquittal
We are unaware o f any commentator or Member o f Congress who has adopted this position


                                                         112
    Whether a Former President May Be Indicted and Tried fo r the Same Offenses fo r Which He was
                       Impeached by the House and Acquitted by the Senate

at 3 (Sept. 24, 1973) ( “ 1973 OLC Memo” ). In support of that claim, the memo­
randum 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 rea­
soning supporting our embrace of the position we attributed to Story was con­
tained 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 . . . on jurisdictional 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 jurisdic­
tional and partly substantive, e.g., that the offense was not of an impeachable
nature.” Id. The memorandum thus rested its conclusion on a somewhat elabo­
rated version of the third argument made in the United States’s brief in the Agnew
case.

   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

    3The 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 M artin’s speech at the Chase trial for the proposition lhat “ Article
 1, section 3, clause 7 was designed to overcome a claim o f 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 cnmes 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 o f the Government in the power o f 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 o f 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 pun­
      ished for another and different offence.
Id. at 432.
   4 We discuss the Story passage infra pp. 126-27 & n 44.


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                          Opinions o f the Office o f Legal Counsel in Volume 24


   1. 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 Indict­
          ment, 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 cre­
ated by the clause does not extend to parties who are impeached but not con­
victed.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). 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 N arcotics Intelligence & Coordination Unit, 507
U.S. 163, 168 (1993); National R.R. Passenger Corp. v. National A ss’n o f 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 Qualifica­
tions 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

   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, 5 8-59, 63 (1997).
   6 See Impeachment o f Judge Alcee L Hastings: Motions o f Judge Alcee L Hastings to Dismiss Articles I-X V
and XV II o f the Articles o f Impeachment Against Him and Supporting and Opposing Memoranda, S Doc. No 101 —
4, at 4 8-57 (1989) (“ Hastings Motions to Dismiss” )


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

o f 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 o f
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).
   The expressio unius argument gains plausibility from a comparison of the fed­
eral Impeachment Judgment Clause with the equivalent clauses in state constitu­
tions. 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

   7See 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, R1 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, Anz. Const, art. 7, pt 2, §2 ; Ark Const art 15,
§ 1 ; Cal. Const art IV, §18; Colo Const art. XIII, § 2 , Fla. Const, art. HI, §17; Ga Cun^l art 3, §7, para
3; Idaho Const art V, §3; 111 Const art. IV, § 14, Iowa Const art. Ill, §20, La Const, art. X, §24, Me. Const,
art HI, §7, Mo Const art. V ll, § 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 , S C Const art XV, § 3 , S D 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; Wise. Const art VII, § 1, Wyo. Const § 18.
   We have found references to the difference between the wording o f the federal clause and that of many of the
state constitutions in only two judicial decisions, one o f which relies upon the other State ex. rel. Christian v
Rudd, 302 So 2d 821, 825 (Fla Dist. Ct. App 1974), vacated in part on other grounds, Rudd v State ex. rel.
Christian, 310 So.2d 295 (F la.1975), In re Investigation by Dauphin County Grand Jury, 2 A 2d 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 inves­
tigating committee then sought a writ o f 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 o f Representatives o f the sole power o f impeachment did not have the effect
      o f depriving the court of its power to continue the investigation in the existing proceeding of crimes consti­
      tuting 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 o f 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 “ w hether con­
      victed or acquitted” does not require halting criminal proceedings until after the impeachment The provi­
      sion 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 o f The Federalist, to support the argument that the impeachment
      tnal should precede the criminal proceeding. But the federal constitution, U S C .A . Const art 1, §3 , cl.
                                                                                                               Continued


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                             Opinions o f the Office o f Legal Counsel in Volume 24


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 im peached” 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
       7 deals only with conviction, not with conviction or acquittal. “ But the Party convicted shall nevertheless
       be liable and subject to Indictment, Tnal, Judgment and Punishment, according to Law.” Our constitution
       subjects the accused to prosecution regardless of w hether “ convicted or acquitted” in the impeachment
       trial, thereby indicating that, as the result o f 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. R udd, 302 So.2d at 824-25
   9See 5 Francis Newton Thorpe, The Federal a n d State Constitutions 3097 (1909; reprint 1993) ( “ Thorpe” ). The
clause was added at the suggestion o f James W ilson, who had been a delegate to both the federal constitutional
convention and the Pennsylvania ratifying convention. Pennsylvania adopted its first state constitution in 1776. In
 1789, the state legislature called a convention to draft a new charter. See generally Joseph S. Foster, The Politics
o f Ideology: The Pennsylvania Constitutional Convention o f 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 judgm ent clause See Minutes o f the Convention o f the Commonwealth o f Pennsylvania, Which
Commenced at Philadelphia, on Tuesday the Twenty-fourth Day o f November, in the Year o f Our Lord One Thousand
Seven H undred and Eighty-nine, fo r the Purpose o f Reviewing, and i f They See Occasion, Altering and Amending,
the Constitution o f this State 3 9-40 (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 convenuon 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 (W ilson mouon and approval without division), 175 (rejection
of motion to stnke the amended sentence rejected 51-7).
    l0See also A n z Const art 7, pt 2, §2, Cal. C onst 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. Ill, § 17 ( “ conviction
or acquittal shall not affect the civil o r criminal responsibility of the officer” ); III Const art. IV, § 14; Iowa Const
art III, §20; M e Const art. Ill, § 7 ; Mont C onst art. V, § 13, Nev Const art. 7, §2; N M Const art IV, §36;
N.D. Const, art XI, § 10; S D 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 o f 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 o f the proposed amendment. A M r. W orden observed that there “ certainly was a difficulty, as a
party tried on articles o f impeachment and acquitt[ed], might throw himself on the great principle that a man shall
not tw ice be put in jeopardy for the same offence and he might plead his acquittal as a bar to an indictment in
a court o f law ” S. Croswell & R. Sutton, Debates and Proceedings in the New-York State Convention, fo r the
Revision o f the Constitution 434—437 (1846); Journal o f the Convention o f the State o f New-York, Begun and Held
at the Capitol in the City o f Albany, on the First D ay o f June, 1846, at 15, 734—35 (1846)


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

basis for treating acquittals and convictions by the Senate distinctly. 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 o f 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 succes­
sive 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 indi­
          vidual for an alleged offense, thereby subjecting him to embarrass­
          ment, expense and ordeal and compelling him to live in a con­
          tinuing 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

   13 The best histories of the development o f ihe double jeopardy principle in English law are Martin Fnedland,
Double Jeopardy 5-15 (1969) and Jill Hunter, The Development o f the Rule Against Double Jeopardy, 5 J. Legal
Hist. 3 (1984); see also Jay A. Sigler, Double Jeopardy 1-37 (1969), Sigler, A History o f Double Jeopardy, 7
Am. J. Legal Hist. 283 (1963), M anon Kirk, "Jeopardy" During the Period o f the Year Books, 82 U. Pa. L. Rev.
602 (1934), George C. Thomas III, Double Jeopardy 7 1-86 (1998). For some of the Supreme C ourt's leading discus­
sions of double jeopardy history, see United States v. Wilson, 420 U.S 332, 339-42 (1975); Benton v Maryland,
395 U S 784, 7 95-96 (1969), Bartkus v. Illinois, 359 U.S. 121. 151-55 (1959) (Black, J., dissenting)
   144 William Blackstone, Commentaries on the Laws o f England 329 (1772, reprint 1967) ( “ Blackstone’s Com­
mentaries” ), see also 2 Hawkins, supra chs 35-36, at 523-37, Thomas Wood, An Institute o f the Laws o f England
664-65 (8th ed 1754), 2 Matthew Hale, The History o f the Pleas o f the Crown chs 31-32, at 240-55 (1st Am.
ed 1847)
   ,5 “ [N]or shall any person be subject for the same offence to be twice put in jeopardy o f life or lim b.” U.S.
Const, amend V.


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                            Opinions o f the Office o f Legal Counsel in Volume 24


impeachment sanctions justified a relaxation of the normal ban on multiple punish­
m ents— 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 o f 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 prosecu­
tion. 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-pro-
tecting 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 constitu­
tion 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

   16 One might perhaps find evidence of this distinction between finality of acquittals and the dangers o f successive
trials, on the one hand, and finality o f 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 o f Life o r Lim b for one and the same Offence, nor, unless in case of impeachment, be punished
more than once for the same O ffence ” 4 Bernard Schwartz, Roots o f the Bill o f Rights 912 (1971).
   17 The Federalist, supra at 442.
   18 Blackstone, for exam ple, stated that “ it is contrary to the genius and spint 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 o f its few breaks with the Massachusetts Constitution of
1780, included a double jeopardy clause. It provided. “ No subject shall be liable to be tned, after an acquittal,
for the same crim e or offence.” 4 Thorpe, supra at 2455.


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

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).

  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 regu­
larly 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 preemp­
tion); 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 “ [hjowever 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


   20The Maryland ratifying convention suggested adding the following clause. “ That there shall be a tnal by jury
in all criminal cases, according to the course o f the proceedings in the state where the offence is committed, and
that there be no appeal from matter o f fact, or second tnal 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 o f the Federal Constitution, as Recommended by the General Convention at Philadelphia, in 1787,
at 550 (Jonathan Elliot, ed , 2d ed. 1836; repnnt 1941) ( “ Elliot’s D ebates” )


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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 implica­
tion 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
Impeachment Judgment Clause’s final sentence. Indeed, while a number of partici­
pants in the ratification debates and several early commentators simply repeated
the words o f 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 commenta­
tors 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 punish­
ments 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 o f 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

    21 See also Ford v United States, 273 U.S. 593, 611 (1927) ( “ This maxim properly applies only when in the
natural association o f 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 affiim auve inference that that which is omitted must
be intended to have opposite and contrary treatm ent” )
    22See, e.g., 2 Joseph Story, Commentaries on the Constitution o f the United States 251-52 (1833, reprint 1994)
( ‘‘Story’s Commentaries); 2 Richard Wooddeson, A Systematical View o f the Laws o f England 611-14 (1792), Raoul
Berger, Impeachment- The Constitutional Problems 67 (1974)
    23 See Peter C. H offer & N E.H Hull, Impeachment in America 1635-1805, at xi, 97 (1984)
    24 V irginia's consutution o f 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 law s 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 penalues as the laws shall direct ” It also stated that “ all officers shall be removed
on conviction o f m isbehavior at common law, or on impeachment, or upon the address of the general assembly.”
I id. at 566


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

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 indict­
ment, trial, judgment, and punishment, according to the laws.” 25 The Massachu­
setts 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 punish­
ment, according to the laws of the land.” 26
   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 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

   ^ 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 o f 1776-1777. A committee composed of John Jay,
Gouvemeur M om s, Robert R. Livingston, W illiam Duer, John Sloss Hobart, Abraham Yates, J r, Robert Yales,
Henry Wisner, William Smith, John Broome, Samuel Townsend, Charles DeWm, 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 o f New York 484-539 (1906). The draft apparently originally provided
that “ no Judgment or Sentence o f the said Court . . shall extend farther than to removal from office and Disquali­
fication to hold or enjoy any place o f Honour, Trust, or Profit under this State But the pnriy convicted shall neverthe­
less be afterwaid* subject to a farther trial in the Supreme Court by a jury o f the Country and to such additional
Punishment according to the nature o f the Offense and the law of the land as the Judgment o f the said court shall
be inflicted.” Lincoln, supra al 539 On a motion seconded by Jay and Scott, the convention changed the last
sentence to its final form See 1 Journals o f the Provincial Congress. Provincial Convention, and Committee o f
Safety and Council o f the State o f 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 consutution o f 1778).
See Journal o f the Convention fo r Framing a Constitution o f Government fo r the State o f Massachusetts Bay. From
the Commencement o f Their First Session, September I, 1779. to the Close o f Their Last Session, June 16. 1780,
at 201, 262 (1832) It apparently provoked little or no discussion When the 1778 draft constitution had been cir­
culated, at least one town included an objection to that document’s impeachment judgment clause among its list
of criticisms The town o f 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 beside1 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
one1” The Popular Sources o f Political Authority 236 (Oscar & Mary Handlin, eds., 1966) ( “ Handlin & H andlin” ).
   27 See 2 The Records o f the Federal Convention o f 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” )


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on July 23 gave the assignment o f 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 the their pro­
posed judiciary article.29 The convention approved it, apparently without divi­
sion.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 Arrange­
ment 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 discus­
sion 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 pro­
posed 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

   28 On the appointment o f the committee, see 2 id at 85, 9 5-96, 97, 106 The members were John Rutledge of
South Carolina, Edmund Randolph o f Virginia, Nathaniel Gorham o f Massachusetts, Oliver Ellsworth of Connecticut,
and James W ilson o f Pennsylvania. For their report, see id. at 185-89
   29 See 2 id. at 187.
   i0 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 M adison’s notes. C f 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,
5 5 1 ,5 5 4 ,5 8 7 ,5 9 2 ,6 1 2 -1 3
   32 See 2 id at 585, 592.
   31 See 2 id. at 612-13.
    34 The defendant in the first federal impeachment, W illiam Blount, was a Senator (or former Senator) The House
adopted a resolution o f impeachment, the Senate expelled Blount the next day, and several months later the House
adopted articles o f impeachment See 3 Asher C Hinds, H inds’ Precedents o f the House o f Representatives 646-
50 (1907) ( “ H inds' 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
S enate’s decision that it lacked jurisdiction has generally been taken as establishing that Senators are not liable
to impeachment. See generally Buckner F. M elton, J r , The First Impeachment. The Constitution’s Framers and
the Case o f Senator William Blount (1998) A t the time of the ratification debates, though, many participants thought
Senators (like members o f the House of Lords in England) would be subject to impeachment. See, e.g., 2 The
D ocumentary History o f the Ratification o f the Constitution 492 (M errill Jensen et a l , eds. 1976-) (“ DHRC” ) (state­
ment o f James W ilson 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).


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

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 o f
the courts o f law to be conducted under all the ordinary form s and precautions,
which exceedingly diminishes the importance of their judicial powers.” 36 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
    35The Federalist No 65, at 442 (Jacob E Cooke, ed , 1961); see also The Federalist No 69, at 463 (Alexander
Hamilton) ( “ The President o f the United States would be liable to be impeached, tned, 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, tnal, 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 o f 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 o f 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 o f election o f impeachment, and dismission from office for misdemeanors, and
of further punishing the culprits by the violated laws o f their country” )
    37Americanus /, 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 effective1 “ If [the President]
make a bad treaty, what then7 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 disquali­
fication to hold any place o f honor, mist, or profit But the person convicted is further liable to trial at common
                                                                                                             Continued


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   These remarks on the Impeachment Judgment Clause reflect the two concerns
motivating it. Because impeachment was designed to serve above all as a legisla­
tive 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 o f the Supreme Court, revealed such an under­
standing 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 o f 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 estab­
lished, 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 comple­

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 o f punishment” ).
    38 Judges were made subject to impeachment near the end o f 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 discus­
sion focused on relations between the legislature and the executive
    39 2 DHRC, supra at 492. W ilson was also the one who, three years later, proposed the change from “ the party
convicted” to " th e party, whether convicted o r acquitted” in the Pennsylvania constitution of 1790 See supra n.9
 It is unclear what conclusion, if any, to draw from W ilson’s role in re-wording the impeachment judgm ent clause
in the Pennsylvania constitution — whether it suggests that he thought his initial reading of the federal impeachment
judgm ent clause was erroneous o r whether he was instead seeking to clarify something that he thought was implicit
in the wording o f the federal clause


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

tion of the Constitutional Convention, Madison sent Pendleton a copy of the Con­
stitution for his consideration. In his generally favorable response, Pendleton con­
fessed 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
   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 under­
standing 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 appear­
ance, 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 acquit­
tals. St. George Tucker, a distinguished jurist and editor of an edition of Black­
stone’s Commentaries that gained widespread use in the early nineteenth-century
United States, included the first extended commentary on the new federal constitu­
tion 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 impeach­
ment, 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 o f 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 o f 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 jeop­

   40 Letter from Edmund Pendleton to James Madison, Oct 8, 1787, 10 DHRC, supra at 1773 (emphasis added).
On Oct. 28, Madison responded to Pendleton’s long letter with a short one, stating, “ The remarks which you make
on the Act of the Convention appear to me to be in general extremely well founded ” 10 The Papers o f James
Madison 223 (1977). Madison then mentioned two particular points: the prohibition in Article I, Secuon 9, Clause
6 on states establishing customs duties, and the prohibition in article 6 on religious tests for federal office. The
rest of the letter was about the prospects for ratification in the various states. See id. at 223-24 Pendleton’s response
to M adison’s Oct. 28 letter has apparently been lost See id. at 444
   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” )


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ardy principle would forbid it.43 Without the Impeachment Judgment Clause, Story
contended, ‘ ‘it might be a matter o f 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

   That two participants in the ratification process and a number of other early
readers o f the Constitution did not understand ‘‘the party convicted’’ as containing
a negative implication concerning parties acquitted by the Senate fits our under­
standing 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 impeach­
ment defendants, including, for example, banishment, forfeiture of estate, impris­
onment, 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 sanc­
tions, 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 sanc­
tions 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

   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 o f the phrase “ the party convicted.’’ A lthough much o f his discussion of the function of
the final sentence o f the Impeachment Judgment Clause is focused on, if not limited to, parties convicted by the
Senate, his ultim ate description o f 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
C onstitutional Law 159 n.32 (3d ed 2000)
   46W hile such a broad reading o f “ Judgment in cases of impeachment” seems in tension with the apparently
narrow er meaning of the phrase “ cases of impeachment” in the jury tnal guarantee, see U S Const, art. Ill, §2,
cl 3, M adison used the same phrase in his proposal for the D ouble Jeopardy Clause in a way that comports with
the broader meaning “ No person shall be subject, except in cases o f impeachment, to more than one punishment,
or one trial for the same offence.” Creating the Bill o f 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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   Whether a Former President May Be Indicted and Tried fo r the Same Offenses fo r Which He was
                      impeached by the House and Acquitted by the Senate

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.

  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 impeach­
ment 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 Other leading writers on criminal law


 47 Handlin & Handlin, supra at 236. See supra n 26
 484 Blackstone’s Commentaries, supra at 329


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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 lim­
ited the reach of the double jeopardy principle to cases where at least the defend­
ant’s liberty was at stake.51 On that understanding, a proceeding in which convic­
tion 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 agst 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. Tench

  49See 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 ” )
  50For discussions o f the possible meanings o f ‘‘life or lim b,” see Thomas, supra at 119-22 (1998), Stephen
N. Limbaugh, Jr., The Case o f Elx Parte Lange (or How the Double Jeopardy Clause Lost Its “Life or Lim b"),
36 Am. Crim L. Rev 53, 6 5 -6 6 (1999), A khil 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 6 8 -6 9


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

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 o f the courts
o f 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 dan­
gerous 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 impeach­
ment 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 fol­
lowing 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 disquali­
fication were at stake did not constitute an instance of jeopardy.



   53 2 DHRC, supra at 143.
   54 2 DHRC, supra al 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 o f 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 o f an impeachment respondent’s “ fame and his most valuable rights as a citizen” ); 2
Elliot’s Debates, supra at 45 (comment o f Gen. Brooks at the Massachusetts ratifying convention that disqualification
from federal office “ is great punishment” ), c f Proceedings o f the U.S. Senate in Impeachment Trial o f Alcee L
Hastings, S Doc. 101-18, at 736 (1989) ( “ Hastings Tnal Proceedings” ) (statement of Sen Specter) W e find the
use of the word “ punishment” in these debates o f 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 o f 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 o f 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 “ punish­
ments” 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 o f James Iredell in North Carolina ratifying convention).


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   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 sepa­
ration of powers. The second and third rest on the distinctive qualities of impeach­
ment 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 sev­
eral 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 pro­
tecting 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 protec­
tions. 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 govern­
ment both suited and required to guard the defendant’s procedural rights.56
   56 As Janies W ilson put it in his Law Lectures o f 1792, “ Impeachments, and offences and offenders impeachable,
come not in those descriptions, within the sphere o f ordinary jurisprudence They are founded on different principles;
are governed by different maxims, and are directed to different objects.” 1 The Works o f James Wilson 408 (James
D Andrews, ed., 1896). The staff o f the House Judiciary Committee made the same point at the time of the investiga­
tion o f 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 o f impeachment is not personal punishment, its function is primarily to maintain constitutional govern­


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

   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 juris­
dictional 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 fol­
lowing 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 o f 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 jurispru­
dence does give ju ry 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

ment.” Staff of the House Comm on the Judiciary, 93d C o n g , 2d S e s s , Constitutional Grounds fo r Presidential
Impeachment 24 (Comm Print 1974); see also Proceedings o f the United Stales Senate in the Impeachment Trial
o f Walter L. Nixon, J r , A Judge o f the United States District Court fo r the Southern District o f Mississippi, S.
Doc 101-22, at 36 (1989) ( “ Walter Nixon Trial Proceedings*’) (bnef of the House of Representatives in support
of the articles o f impeachment' “ Impeachment is not a criminal proceeding. It is a remedial process designed to
protect our institutions of government and the Amencan people from individuals who are unfit to hold positions
of public trust” )
   57 Cf. Hoffer & Hull, supra at 114 (statement of Edmund Burke in impeachment tnal of Warren Hastings “ The
labour will be on the criminality of the facts, where proof, as I apprehend, will not be contested ” )
   58See, for example, the cases o f 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)


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the legal right to engage in such nullification absent legislative authorization, see
S parf & 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 o f 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 ju ry ’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 judg­
ment. 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 Ham­
ilton observed in F ederalist 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 polit­
ical in two senses. The uncertain contours of the phrase “ high crimes and mis­
dem eanors” 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 o f 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. In the case of the President, who has been elected

   59 See also Richard St. John, Note, License to Nullify: The Democratic and Constitutional Deficiencies o f Author-
ized Jury Lawmaking, 106 Yale L J 2563 (1997). Indeed, some leading commentators have suggested that the
absoluteness o f the double jeopardy bar created by jury acquittals can be explained only as a shield of the ju ry ’s
authority to nullify. See Peter Westen & R ichard Drubel, Toward A General Theory o f Double Jeopardy, 1979
Sup. Ct. Rev 81, 122-55 (1978).
   60 The Federalist, supra at 439; see also 1 The Works o f James Wilson, supra at 408.


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

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 harm­
ful 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 determina­
tion 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 polit­
ical 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

    61 One might argue lhat 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 tnal is not technically a criminal proceeding and thus the defendant
has not been placed in jeopardy within the meaning o f 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 denve advantage. Thus cnminal 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 quesuon 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 o f the nation at the time, that removal is not an appropriate political remedy
even for a senous crime.
    62Accord Charles L Black, Jr., Impeachment A Handbook 40-41 (1974); 1 Tnbe, 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 cnminal cases. See also Brown v. Ohio, 432 U.S. 161, 166 n.6 (1977). It thus bars successive
prosecuUons even in some instances where the offenses are not the same The court in the second prosecution must
“ examine the record of [the] pnor 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 (citauon and internal quotation marks
omitted) Based on this pnnciple, which the Court has also held is incorporated by the Due Process Clause, see
/</. 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 o f a factual finding necessary to his subsequent convicuon,
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 vaned 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


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reasons the framers limited the punishments for conviction on impeachment was
their fear that impeachments were liable to partisan abuse. As Hamilton noted
in F ederalist 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 The
Constitution’s requirements that Senators take an oath before convening as an
impeachment court and that a two-thirds vote is necessary for conviction were
designed to guard against the influence of these political forces. See U.S. Const,
art. I, § 3, cl. 6. Its specification that the Chief Justice rather than the Vice Presi­
dent should preside when the President is tried reflects a similar concern with
impeachment verdicts being swayed by immediate political interests. See id. If
the Vice President presided, he might encourage conviction so as to boost himself
into the Presidency, especially if the Vice President and President were rivals,
a realistic possibility before the 12th Amendment reformed the electoral college
in 1804. But, as a number of participants in the ratification debates pointed out,
partisanship and transitory political passions may sway the Senate to acquit as
well as to convict.64 Just as the possibility of partisan convictions helps explain
the limitation on impeachment punishments and the lifting of the double jeopardy
bar for Senate convictions, so the possibility of partisan acquittals supports the
lifting of the double jeopardy bar for Senate acquittals.

   C. The Double Jeopardy Clause

  The Double Jeopardy Clause of the Fifth Amendment provides that “ [n]o per­
son . . . shall . . . be subject for the same offence to be twice put in jeopardy
of life or lim b.” U.S. Const, amend. V. For several reasons, we think a party
acquitted by the Senate may not rely on the Double Jeopardy Clause as a bar
to prosecution in the courts for the same offenses.

   1. Original Understandings

  First, the history of the Double Jeopardy Clause suggests that its drafters under­
stood the phrase “ in jeopardy o f life or limb” to exclude impeachment pro­
ceedings. The Clause’s legislative history, like that of the Bill of Rights amend­
ments as a whole, is sparse. We know that in Madison’s proposal to the House,

  63 Id. at 4 3 9 -4 0
  64See, e.g., Letter from W illiam Symmes, Jr., to Peter Osgood, J r , 14 DHRC, supra at 113-14, 4 Elliot’s Debates,
supra at 4 5 -4 6 (statement o f Mr. Taylor in N orth Carolina ratifying convention), id. at 117 (statement of Mr.
Spencer); id at 125 (statement o f M r Porter)


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

what became the Double Jeopardy Clause was expressed in these terms: “ No
person shall be subject, except in cases of impeachment, to more than one punish­
ment or one trial for the same offence.” 65 Several House members suggested
deleting the phrase “ or one trial,” but their motion was defeated.66 The version
adopted by the House followed Madison’s phrasing.67 In response, the Senate ini­
tially adopted a version of the clause that deleted the reference to impeachment
and added the phrase “ life or limb” : “ No person shall be subject to be twice
put in jeopardy of life or limb by any public prosecution for the same offence.” 68
The Senate adopted the ultimate wording by omitting “ by any public prosecution”
when it combined the double jeopardy provision with the other clauses that make
up what became the Fifth Amendment.69
   One might argue that the Senate’s deletion of the House’s exception for
impeachments suggests an intent to include impeachments within the Double Jeop­
ardy Clause’s scope.70 But while we lack direct evidence of the purpose of the
Senate’s change in language, that explanation seems unlikely. The wording of
related amendments suggests that a more likely explanation for the removal of
the exception for impeachments was a recognition that the use of the phrase “ life
or limb’’ by itself restricted the reach of the clause to a subset of ordinary criminal
cases. In Madison’s original proposal, the jury trial and grand jury guarantees
had been grouped together in an amendment separate from the double jeopardy
guarantee. The jury trial provision included an express exception for impeach­
ments and the grand jury clause an implicit one: ‘‘The trial of all crimes (except
in cases of impeachments, and cases arising in the land or naval forces, or the
militia when on actual service in time of war, or public danger,) shall be by an
impartial jury of the vicinage . . . ; and in all crimes punishable with loss o f
life or member, presentment or indictment by a grand jury shall be an essential
preliminary.” 71 Clearly impeachments, not indictments, were the preliminary step
toward trial before the Senate. The emphasized phrase seems to have been under­


   65 I Annals o f Cong 451-52 (Joseph Gales, ed , 1789), Veil, supra at 5
   <*/</. at 180, 186-87, 199.
   67 Id. at 39.
   68 Id at 39 n.4, The Complete Bill o f Rights 301 (Neal Cogan ed., 1997) ("C ogan’’) As noted above, two state
ratifying conventions, M aryland’s and New York’s, had proposed amendments including a double jeopardy guarantee
See 2 Elliot’s Debates, supra at 550; 4 Schwartz, supra at 912. The wording of the New York proposal was: “ 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 ” Id The Senators from New York were Rufus
King and Philip Schuyler. 9 Documentary History o f the First Federal Congress xxix (Kenneth R. Bowling &
Helen E Veit e d s , 1988). King had been a delegate to the Constitutional Convention (from Massachusetts), see
3 Farrand, supra at 557, but neither he nor Schuyler had been members of the New York ratifying convention,
2 ElUot's Debates, supra at 206-07
   69 Veit, supra at 39 n 14; Cogan, supra at 302-07
   70 See Hastings T nal Proceedings, supra at 736 (statement of Sen Specter).
   71 Veit, supra at 13


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stood to exclude impeachment proceedings72 and to identify a group of serious
crimes, probably most if not all felonies (when tried in the regular courts).73 The
Senate’s substitute for the House version of the Double Jeopardy Clause omitted
the express exception for impeachments and added the phrase “ life or limb” in
one fell swoop. Given Madison’s earlier restrictive use of the similar phrase “ loss
of life or member,” it makes more sense to understand the Senate’s deletion of
the impeachment exception as an acknowledgment that the use of “ life or limb”
made the express exception for impeachments unnecessary than to view the dele­
tion in isolation as an attempt to bring impeachment within the Double Jeopardy
Clause’s reach.
   Second, our interpretation of the legislative history of the Double Jeopardy
Clause fits with the dominant understanding of the reach of the double jeopardy
rule at the time of the founding. As we explained above, under that understanding
the rule was limited to proceedings that placed the defendant in risk of at least
liberty if not life, and thus a trial in which removal and disqualification are the
only possible sanctions does not fit within the rule.74

   2. Current Double Jeopardy Doctrine

   The Court uses a two-step approach to determining whether a proceeding con­
stitutes an instance of jeopardy. First, it looks to the legislature’s intent. See, e.g.,
Hudson, 522 U.S. at 103. If the legislature intended the proceeding to be criminal,
then the Double Jeopardy Clause applies. If the legislature intended the proceeding
to be civil, then the Court looks to a series of factors designed to identify criminal
punishments. If those factors clearly show that the legislature has provided for
the imposition of criminal punishment, the Double Jeopardy Clause will apply
despite the legislature’s claim that the proceeding is civil.
   At both the first and second steps of this method, we think the better view
is that an impeachment trial does not constitute an instance of jeopardy within
the meaning of the Double Jeopardy Clause.
  At the first step, one might argue that the references to impeachment in the
Constitution suggest that it is a criminal proceeding. Article III, Section 2, Clause
3 mandates that the “ Trial of all Crimes, except in cases of impeachment, shall
be by Jury.” Article II, Section 4 ’s definition of impeachable offenses limits that
group to treason, bribery “ or other high Crimes and Misdemeanors.” The Presi­

   72 This is so despite the fact that one of the tw o impeachable offenses specified in the Constitution was treason,
which was punishable in the regular English courts by death (and was made a capital crime by the first federal
criminal statute, see Act o f A pr 30, 1790, ch. ix, I Stat. ] 12).
   73The House substituted the phrase “ capital, or otherwise infamous crim e,” but apparently without any change
in meaning intended. See Cogan, supra at 266—67, 269-70. Roger Sherman of Connecticut had proposed the phrase
“ any crim e w hereby he may incur loss of life o r any infamous punishment.” Id. at 266.
   74 See supra pp. 125-26, 128-30.


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

dent’s pardon power, in Article II, Section 2, Clause 1, extends to all “ Offenses
against the United States, except in cases of impeachment.” 75
   We find this view unconvincing for several reasons. First, the uses of the term
“ crimes” in connection with impeachments occur precisely in contexts that distin­
guish impeachments from regular criminal proceedings. The reference in Article
III, Section 2, Clause 3 establishes that parties who have been impeached, unlike
regular criminal defendants, are not entitled to a jury, one of the most fundamental
safeguards in our system of criminal justice. The definition of impeachable
offenses in Article II, Section 4 was designed to capture more than ordinary
crimes. Second, as we have tried to show above, the framers and ratifiers under­
stood the limited nature of the sanctions available to the Senate as marking out
impeachments as distinct from regular criminal proceedings.76
   Third, the practice of the Senate under the Constitution suggests that, while
impeachment trials are akin to criminal trials in many respects, they are fundamen­
tally different from criminal trials in ways that remove Senate trials from the reach
of the double jeopardy rule. The clearest examples of this are perhaps the Senate’s
standard of proof and its methods for taking evidence. Senators have not consid­
ered themselves bound to apply the beyond-a-reasonable-doubt standard of proof
required in criminal trials.77 See In re Winship, 397 U.S. 358, 361-64 (1970)
(Due Process Clause mandates beyond-a-reasonable-doubt standard of proof in
criminal trials). In one recent impeachment, the Senate overwhelmingly rejected
a motion requiring that standard.78 Since the early part of this century, moreover,
the Senate has empowered a committee to take evidence on its behalf rather than
hearing the evidence itself, and the Senate has now employed that method on

   75 In 1796, the House o f Representatives requested the opinion o f Attorney General Charles Lee on the proper
method o f proceeding against a judge of the Supreme Court for the Northwest Territory who had been accused
of various improprieties in the conduct of his judicial duties. The Altomey General responded, in part
      A judge may be prosecuted in three modes for official misdemeanors or cnmes. by information, or by
      an indictment before an ordinary court, or by impeachment before the Senate of the United States The
      last mode, being the most solemn, seems, in general cases, to be best suited to the tnal of so high and
      important an officer; but, in the present instance, it will be found very inconvenient, if not entirely impracti­
      cable, on account of the immense distance o f the residence of the witnesses from this city [Philadelphia].
      In the prosecution of an impeachment, such rules must be observed as are essential to justice; and, if
      not exactly the same as those which are practiced in ordinary courts, they must be analogous, and as
      nearly similar as to them as forms will permit
3 Hinds' Precedents, supra at 982 In light of the great distance between the Territory and the national capital,
the Attorney General recommended that the case be brought by information or indictment in the regular courts
Id at 982-83; see also 1 American State Papers 151 (1834) The House apparently agreed with the recommendation,
and took no further action See id at 157
   76 See supra pp 127-30
   77 See, e.g , Proceedings o f the United States Senate in the T nal o f Impeachment o f Halsted L Ritter, S Doc
No 74-200, at 657 (1936) ( “ Ritter Trial Proceedings” ) (statement o f Sen McAdoo); Hastings Trial Proceedings,
supra at 711, 776—77 (statements of Sens Bingaman and Lieberman). Many Senators have based their votes on
the beyond-a-reasonable-doubt standard.
   78Proceedings o f the U S Senate in the Impeachment T n a l o f Harry E. Claiborne, S. Doc No 99-48, at 105—
09, 150 (1986) ( “ Claiborne T nal Proceedings” ) (motion rejected 75-15)


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three occasions.79 Such a delegation of the responsibility to hear the evidence
conflicts with our understanding o f the factfinder’s essential role in a criminal
trial.
   The text of the Constitution, the evidence concerning the founders’ under­
standing of the new process of impeachment they were creating, and the Senate’s
practice suggest that the framers and ratifiers conceived of impeachment trials,
as Judge Gesell has observed, as sui generis proceedings, bearing some character­
istics of criminal trials but clearly lacking many others. Hastings v. United States
Senate, 716 F. Supp. 38, 41 (D.D.C. 1989). Although the evidence is hardly
unmixed, we think it weighs in favor of the view that the framers and ratifiers
did not consider an impeachment trial an instance of jeopardy within the meaning
of the double jeopardy rule.
   In the regular case of legislatively created proceedings, the Court has developed
and employed the second step of its two-step test in order to prevent legislators
from evading the requirements of the Double Jeopardy Clause simply by labeling
a proceeding civil rather than criminal or calling a monetary sanction a tax rather
than a fine.80 But when it comes to the framers’ establishment of a new and
distinctive process of impeachment, this need to second-guess legislative judg­
ments by looking behind direct evidence of intent simply does not arise. As a
result, we believe, when examining a special proceeding whose relationship to
regular criminal proceedings the framers defined, the first step of the process
should end our analysis (especially if the evidence at that step is clear).
   Even if one were to go on to the second step of current double jeopardy analysis
and judge whether an impeachment trial is a criminal proceeding by determining
whether the sanctions upon conviction are criminal punishments,81 the result
would only confirm the conclusion reached so far: that an impeachment trial is
not a criminal proceeding within the meaning of the Double Jeopardy Clause.
With the possible exception of a few years in the early 1990s, the Supreme Court
has for several decades applied an open-ended multi-factor test to determine
whether a sanction constitutes criminal punishment. Originally developed in a non-
Double Jeopardy case, Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), the
seven factors are, in the Court’s view, “ neither exhaustive nor dispositive,”
United States v. Ward, 448 U.S. 242, 249 (1980), but “ useful guideposts,” Hud­
son, 522 U.S. at 99. They are: “ (1) “ [wjhether the sanction involves an affirma­
tive disability or restraint” ; (2) “ whether it has historically been regarded as a
punishment” ; (3) “ whether it comes into play only on a finding of scienter" ;

   79 See Stephen Burbank, Alternative Career Resolution: An Essay on the Removal o f Federal Judges, 76 Ky
L. Rev. 643, 6 4 7 -4 8 (1988).
  80 See, e.g., United States v. Chouteau, 102 U S 603 (1880), United States v LaFranca, 282 U.S 568 (1931),
Helvering v M itchell, 303 U S. 391 (1938), Kennedy v Mendoza-Martinez, 372 U S . 144 (1963); Department o f
Revenue v. Kurth Ranch, 511 U.S. 767 (1994); Ursery v. United States, 518 U S. 267 (1996).
   81 For exam ples o f applying this analysis to form ally civil proceedings, see, e g ., Hudson, 522 U S. at 99; Illinois
v Vitale, 447 U.S. 410, 415 (1980); Breed v. Jones, 421 U.S 519 (1975); H elvenng v. Mitchell, 303 U.S 391,
399-401 (1938).


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

 (4) “ whether its operation will promote the traditional aims of punishment-retribu-
 tion and deterrence” ; (5) “ whether the behavior to which it applies is already
 a crime” ; (6) “ whether an alternative purpose to which it may rationally be con­
 nected is assignable for it” ; and (7) “ whether it appears excessive in relation
 to the alternative purpose assigned.” Id. at 99-100 (internal quotation marks
 omitted).
    Of the seven Mendoza-Martinez factors, five strongly indicate that removal is
 not criminal punishment, one points more tentatively in that direction, and one
 points tentatively towards treating removal as a criminal sanction. Disqualification
 presents a much closer question because at least one, and possibly two, of the
 factors that favor treating removal as a non-criminal sanction suggest that disquali­
 fication is a criminal punishment; moreover, in a post-Civil War decision, the
 Supreme Court in dictum characterized disqualification in an impeachment judg­
 ment as punishment at least for purposes of bill of attainder and ex post facto
analysis. See Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 320 (1866). Still,
we believe that those factors in the case of disqualification are not dispositive
and that the Mendoza-M artinez factors as a whole still support classifying disquali­
fication as a non-criminal sanction.
    The first Mendoza-M artinez factor, whether the sanction is an ‘ ‘affirmative dis­
ability or restraint,” is the one that weighs in favor of treating removal as a non­
criminal sanction while its significance for disqualification is less clear. Neither
removal nor disqualification imposes an affirmative restraint because neither
restricts the physical liberty o f the sanctioned individual. In addition, removal
clearly does not constitute an affirmative disability because it imposes no lasting
restrictions on the offender.
    The question whether disqualification from all federal offices is an affirmative
disability is a close one, and we think the better view is that it does constitute
such a disability. The difficulty of the question stems in part from a degree of
inconsistency between the Court’s bill of attainder and ex post facto cases, in
which it developed the notion o f disability as punishment, and its double jeopardy
decisions.
   The Court first used the phrase “ affirmative disability or restraint” three years
before M endoza-M artinez in Flemming v. Nestor, 363 U.S. 603 (1960), a challenge
to a provision of the Social Security Act taking away Social Security benefits
from all individuals who were deported for certain reasons, including (in Nestor’s
case) past membership in the Communist Party. The Supreme Court upheld the
law, rejecting, among other contentions, claims that the statute constituted a bill
of attainder or an ex post facto law. Necessary to both contentions was the propo­
sition that the sanction constituted punishment. The Court explained that the puni­
tive character of a sanction is a question of legislative purpose. See id. at 616;
cf, e.g., DeVeau v. Braisted, 363 U.S. 144, 160 (1960). In determining that the
statute before it did not have a punitive purpose, the Court considered several

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circumstances, the first of which was that “ the sanction is the mere denial of
a noncontractual governmental benefit. No affirmative disability or restraint is
imposed.” Flemming, 363 U.S. at 617.
  The Flemming Court looked back to two post-Civil War decisions striking down
laws on bill o f attainder and ex p o s t facto grounds. In Cummings v. Missouri,
71 U.S. (4 Wall.) 277 (1866), the Court invalidated a provision of the Missouri
constitution requiring all those who would hold a state office, teach, be an officer
of a corporation, an attorney, or a clergyman to take an oath affirming, among
other things, that they had never aided or expressed sympathy for those engaged
in rebellion against the United States or evaded the draft. Cummings was a
Catholic priest who had not taken the oath and yet was serving a church in the
state, and he had been convicted and fined. Referring to the “ disabilities”
imposed by the state constitution, the Court rejected Missouri’s contention that
punishment was restricted to deprivations of life, liberty, or property:

           The deprivation of any rights, civil or political, previously
         enjoyed, may be punishment, the circumstances attending and the
         causes of the deprivation determining this fact. Disqualification
         fro m office m ay be punishment, as in cases o f conviction upon
          impeachment. Disqualification from the pursuits of a lawful avoca­
         tion, or from positions of trust, or from the privilege of appearing
         in the courts, or acting as an executor, administrator, or guardian,
         may also, and often has been, imposed as punishment . . . .

         The theory upon which our political institutions rest is, that all men
         have certain inalienable rights — that among these are life, liberty,
         and the pursuit o f happiness; and that in the pursuit of happiness
         all avocations, all honors, all positions, are alike open to every one,
         and that in the protection of these rights all are equal before the
         law. Any deprivation or suspension of any of these rights for past
         conduct is punishment, and can be in no otherwise defined.

Id. at 320, 321-22 (emphasis added). Punishment, in the Court’s view, therefore
“ embrac[ed] deprivation or suspension of political or civil rights.” Id. at 322.82
  In Ex p a rte Garland, 71 U.S. (4 Wall.) 333 (1866), decided the same day, the
Court struck down for similar reasons a federal law making the taking of a similar
oath concerning participation in or support for the Confederate cause a condition
for practice of law in federal court. The Court stated that “ exclusion from any

  82 The Court quoted the first o f these paragraphs with approval in United States v Brown, 381 U.S. 437, 448
(1965).


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

of the professions or any of the ordinary avocations of life for past conduct can
be regarded in no other light than as punishment for such conduct.” Id. at 377.83
   The Court next addressed these issues in United States v. Lovett, 328 U.S. 303
(1946), in which the Court invalidated as a bill of attainder an appropriations
act that prohibited any federal agency from paying any further compensation to
three particular federal employees, apparently because of the belief that they were,
in the words of the act’s principal sponsor, “ ‘crackpot, radical bureaucrats’ and
affiliates of ‘Communist front organizations.’ ” Id. at 308-09. After an examina­
tion of the act’s origins, the Court concluded that its purpose was “ permanently
to bar them from government service,” id. at 313, and so it determined to judge
the act on that basis. The Court likened the act to those voided in Cummings
and Garland because it

          *operate[d] as a legislative decree of perpetual exclusion’ from a
          chosen vocation. Ex Parte Garland, supra, [71 U.S.] at 377. This
          permanent proscription from any opportunity to serve the Govern­
          ment is punishment, and of a most severe type. It is a type of
          punishment which Congress has only invoked for special types of
          odious and dangerous crimes, such as treason, 18 U.S.C. 2; accept­
          ance of bribes by members of Congress, 18 U.S.C. 199, 202, 203;
          or by other government officials, 18 U.S.C. 207; and interference
          with elections by Army and Navy officers, 18 U.S.C. 58.

Id. at 316.84
  The broad statements in Cummings, Garland, and Lovett that permanent exclu­
sion from a profession or federal office or employment constitutes a disability
and punishment stand in some tension with the Court’s pronouncements in two

   S2See also Pierce v Carskadon, (16 W all) 234 (1872), sinking down, on the authonty of Cummings and Garland,
a West Virginia statute imposing a similar exculpatory oath as a condition of the right to peution for the reopening
of certain sorts o f civil judgments.
   The Garland Court, though relying directly on Cummings, did, however, make one statement that may suggest
that Cummings should not be read in quite the sweeping terms its own language might suggest. The Court noted
that “ [tjhe profession o f an attorney and counsellor is not like an office created by an act of Congress, which
depends for its continuance, its powers, and its emoluments upon the will of its creator, and the possession of
which may be burdened with any conditions not prohibited by the Constitution Attorneys and counsellors are not
officers o f the United States, they are not elected or appointed in the manner prescnbed by the Constitution for
the election and appointment of such officers They are officers o f the court       . " E x parte Garland, 71 U.S
at 378 (1867)
   The Court also stated “ The attorney and counsellor being, by the solemn judicial act of the court, clothed with
his office, does not hold it as a matter o f grace and favor The right which it confers upon him to appear for
suitors, and to argue causes, is something more than a mere indulgence, ‘revocable at the pleasure of the court,
or at the command o f the legislature. It is a nght of which he can only be deprived by the judgment of the court,
for moral or professional delinquency.
   “ The legislature may undoubtedly prescnbe qualifications for the office, to which he must conform, as it may,
where it has exclusive junsdiction, prescnbe qualifications for the pursuit of any of the ordinary avocations of life,
The question, in the case, is not as to the power o f Congress to prescnbe qualifications, but whether that power
has been exercised as a means for the infliction o f punishment, against the prohibition o f the Constitution ” Id
at 379-80.
   84 For a longer list, see DeVeau v Braisted, 363 U S 144, 159 (1960).


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of its leading double jeopardy decisions. In Helvering v. Mitchell, 303 U.S. 391
(1938), the Court’s seminal New Deal decision marking its willingness to give
Congress greater leeway to impose civil sanctions free from the constraints of
the Double Jeopardy Clause, the Court found a special “ tax” imposed on those
who fraudulently underreported their income on their federal tax return to be a
civil sanction and thus imposable despite the defendant’s prior acquittal of a
criminal charge, based on the same acts, of fraudulently evading payment of his
full income tax bill. In assessing whether the special tax was a punitive or remedial
sanction, the Court observed that one remedial sanction “ which is characteris­
tically free of the punitive criminal element is revocation o f a privilege voluntarily
granted.” Id. at 399. As examples, the Court gave deportation of aliens and
disqualification of attorneys to practice before certain courts. Id. at 399 n.2. Sixty
years later, in its most recent decision to address these issues, the Court expressly
endorsed that conclusion. In Hudson v. United States, 522 U.S. 93 (1997), the
Court held that permanent exclusion from employment by any federally insured
bank did not constitute criminal punishment. It reached that conclusion by
applying the Mendoza-Martinez factors, and it stated that “ the sanctions imposed
do not involve an ‘affirmative disability or restraint,’ as that term is normally
understood. While petitioners have been prohibited from further participating in
the banking industry, this is ‘certainly nothing approaching the “ infamous punish­
ment” of imprisonment.’ Flemming v. Nestor, 363 U.S. 603, 617 (I960).” Id.
at 104.85
   W hatever tension may exist between the more sweeping language in Cummings,
Garland, and Lovett, on the one hand, and Helvering and Hudson, on the other,
the latter decisions do not directly reject the Court’s earlier statements as applied
to disqualification from federal office. Even if one took the view (supported per­
haps by G arland, but not Lovett) that the right to hold congressionally established
federal offices is a “ privilege voluntarily granted,” Helvering, 303 U.S. at 399,
it would be much more difficult to characterize the right to run for those elective
offices created by Constitution in similar terms. The qualifications for those offices
are established by the Constitution, and may not be modified by either Congress
or the States. See P ow ell v. McCormack, 395 U.S. 486 (1969); U.S. Terms Limit,
Inc. v. Thornton, 514 U.S. 779 (1995). Disqualification from those constitutionally
created offices, if not from legislatively created ones, constitutes an affirmative
disability.86

   85 See also Ex p a n e Wall, 107 U.S. 265, 288 (1883) (upholding the summary disqualification from practice in
a particular federal district court o f an attorney w ho participated in the lynching of a prisoner); Hawker v. New
 York, 170 U S 189, 196-99 (1898) (upholding state statute prohibiting those ever convicted of a felony from prac­
ticing medicine); United States v. Rusk, 96 F3d 777, 778-79 (5th Cir. 1996) (collecting pre-Hudson court of appeals
decisions finding debarment from regulated industries or professions to be civil sanctions, not cnminal punishment).
   86 A significant bit o f evidence supporting that view appears in the text of the Fourteenth Amendment. Section
3 of that amendment disqualified from federal office all those who, as federal or state officeholders, had taken
an oath to support the Constitution and then had participated in o r aided insurrection against the federal government.
The final sentence o f the section then states “ B ut Congress may by a vote o f two-thirds o f each House, remove
such disability." U.S Const, amend. XIV, §3 (em phasis added)


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

   The second Mendoza-Martinez factor is whether the sanction “ has historically
been regarded as punishment.” Although the historical record is not unambiguous,
we think that, as discussed earlier in this memorandum, both the evidence con­
cerning the framing and ratification of the Constitution and the predominant views
expressed by participants in impeachment trials support the judgment that removal
and disqualification for conviction upon impeachment have been seen not as
criminal punishments but as sanctions with principally remedial goals. The actions
by the House and Senate in the 1980s judicial impeachments discussed in the
next part of this memorandum, each of which involved a defendant previously
prosecuted in the courts, also support that conclusion.
   At least two considerations may be raised against this view, however. First,
while removal has an obvious remedial goal and effect, disqualification’s remedial
function may be less clear. As the record of impeachment trials suggests, though,
Representatives and Senators have seen disqualification’s non-punitive purpose as
preventive or protective. Disqualification prevents those who have abused posi­
tions of public trust from doing so again and thus protects the integrity of the
government’s activities. Admittedly, in one of its bill of attainder cases, the Court
has expressed some skepticism about this sort of argument. In United States v.
Brown, 381 U.S. 437 (1965), the Court undid as a bill of attainder a criminal
statute prohibiting anyone who had been a member of the Communist Party within
the past five years from being an officer or employee of a labor union. The Solic­
itor General argued that the statute’s prohibition on union employment or
officership did not constitute punishment because it “ was enacted for preventive
rather than retributive reasons — that its aim is not to punish Communists for what
they have done in the past, but rather to keep them from positions where they
will in the future be able to bring about undesirable events,” id. at 456—57, an
argument the Court had apparently embraced fifteen years earlier in American
Communications A ss ’n v. Douds, 339 U.S. 382, 413-14 (1950). This time around,
the Court was unwilling to follow the government’s reasoning: “ It would be
archaic to limit the definition of ‘punishment’ to ‘retribution.’ Punishment serves
several purposes; retributive, rehabilitative, deterrent — and preventive. One of the
reasons society imprisons those convicted of crimes is to keep them from inflicting
future harm, but that does not make imprisonment any the less punishment.”
Brown, 381 U.S. at 458. But this statement from Brown is inapposite to the ques­
tion before us. That a criminal punishment may aim to prevent further criminality
does not mean that all sanctions with preventive ends are criminal. Indeed, most
regulatory sanctions count prevention among their prominent goals. It is the cen­
trality of prevention, as compared to retribution and deterrence, that helps mark
disqualification by the Senate as a non-criminal sanction. See Hudson, 522 U.S.
at 105 (the presence of one arguably punitive purpose is insufficient to brand
a sanction as criminal).

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   A second, more historically grounded, objection to the view that removal and
disqualification is not punishment rests on the significant number of federal
criminal statutes that have authorized removal or disqualification from federal
office as a punishment for crime.87 At the state level, statutory or constitutional
provisions for removal and disqualification of officials convicted of crime are even
more common.88 None of these federal statutes provides for disqualification from
office as the sole result of a conviction,89 and all but one of them may properly
be viewed, as is true of similar state-law provisions, as mandating collateral and
remedial consequences of criminal conviction rather than as defining one of the
punishments for the specified crimes. See United States v. Waddell, 112 U.S. 76,
82 (1884) (“ this language . . . is not the sentence of the court, but an indelible
disgrace affixed to the party convicted by the declaration of the law itse lf’).90
Indeed, so learned a jurist as Justice Story wrote in 1833 that “ [i]n the ordinary
course of the administration of criminal justice, no court is authorized to remove,
or disqualify an offender, as a part of its regular judgment. If it results at all,
it results as a consequence, and not as a part o f the sentence.” 91 If there have
been one or two instances in which disqualification was made part of the punish­
ment itself, they are exceptions to the general pattern of disqualification as a legis­
latively mandated collateral consequence of criminal conviction, designed to pro­
tect the public from unfit officers rather than to punish the offender convicted
of such a crime.
   The import of the third Mendoza-Martinez criterion is uncertain. On the one
hand, several considerations suggest that a finding of scienter is not absolutely
necessary for impeachment. Other than by implication in the definition of
impeachable offenses, the Constitution does not impose a scienter requirement.
Moreover, in the second federal impeachment, the Senate convicted and removed
a federal judge for drunkenness on the bench and for flagrantly erroneous rulings
in a forfeiture proceeding despite the fact that it heard evidence submitted by
the judge’s son that the judge was insane and had been at the time of the charged

   87 A dozen o f these statutes passed before the Civil War, four by the first Congress, are discussed in M ana Simon,
Bribery and Other Not So “G ood B e h a v io r C n m in a l Prosecution as a Supplement to Impeachment fo r Federal
Judges, 94 Colum. L. Rev. 1617, 1636-47 (1994). One o f the criminal provisions of the Civil Rights Act of 1870
(the predecessor o f 18 U.S.C §241) mandated disqualification for those convicted of conspiring to deprive someone
o f his or her federal rights See, e.g., United States v. Waddell, 112 U S 76 (1885). For more recent examples,
many of which are the successors o f these early statutes, see Lovett, 328 U S. at 316, DeVeau, 363 U S. at 158-
59. At least four o f the statutes providing for disqualification from federal office of those convicted of particular
offenses remain in the U.S Code See 8 U S.C. §1425 (desertion and draft evasion); 18 U S C. §201 (bribery of
federal officials, w itnesses), § 592 (military interference at polls), § 593 (military interference in elections)
   &sSee, e.g., 10 A L R 5th 139 (1993)
    89 One o f the statutes, that prohibiting desertion from the military and draft evasion, imposes disqualification from
office along with deprivation o f citizenship. See 8 U S C. § 1425.
   90The one that is harder to square with this view is the bribery statute, 18 U S C §201, which (since it was
amended in 1962, see S. Rep. No. 87-2213 (1962)) leaves the imposiuon o f disqualification to the discretion of
the court See also Ex p a n e Wilson, 114 U.S 417, 427 (1885) (referring to disqualification in 1790 bribery act
as “ punishm ent” ), Mackin v United States, 117 U.S. 348, 352 (1886) (describing disqualification in one provision
o f Civil Rights Act o f 1870 as “ in the nature o f an additional punishment” ).
    91 2 Story’s Commentaries, supra § 784, at 254.


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

conduct. The conviction of Judge Pickering has been seen by some as an instance
of conviction of a defendant lacking a criminal mental state.92 Furthermore, given
that the ultimate touchstone for conviction upon impeachment is conduct that
clearly demonstrates unfitness for office, before more modem solutions, see U.S.
Const, amend. XXV (providing procedures for coping with Presidential inca­
pacity); Judicial Councils Reform and Judicial Disability Act, 28 U.S.C. § 372
(authorizing methods short of removal to cope with judicial incapacity), impeach­
ment might well have been the only avenue for removal of officers who were
clearly incapable of carrying out their duties.93 The difficulty of determining
whether an impeachable offense must include an element of scienter stems in part
from the fact that conduct need not be previously defined as criminal in order
to support an impeachment charge and in part from the somewhat uncertain
meaning of the term “ scienter.”
   On the other hand, two considerations support the conclusion that scienter is
a necessary element of an impeachable offense. First, the evolution of the language
defining impeachable offenses at the Constitutional Convention suggests that the
framers sought to exclude mere negligence in the meeting of official responsibil­
ities.94 The phrase originally adopted to define the scope of impeachable conduct
was “ malpractice or neglect of duty.” 95 Later on the Convention considered lim­
iting impeachable offenses to treason and bribery, or perhaps “ corruption” as
well.96 Near the end of their meetings, several delegates thought this definition
was too limited and suggested adding “ maladministration.” Madison, however,
objected that this term was too loose and would leave the President serving at
the “ pleasure of the Senate.” 97 The Convention then settled on “ other high
crimes and misdemeanors” apparently as a compromise, broadening the impeach­
able offenses beyond treason and bribery but restricting them more narrowly than
mere “ maladministration.” That progression suggests that the framers considered
something beyond negligence in the handling of official responsibilities as nec­
essary to impeachable conduct, trusting that elections would provide sufficient
check against the less culpable forms of misconduct.
   Second, as Madison’s comment about the danger of impeachment being wielded
as a tool of political control suggests, impeachment should not be used as a means
to punish officials for reasonable, good-faith disagreements over the reach of statu­
tory or constitutional provisions. The acquittal of Justice Chase, for example,
stands for the proposition that impeachment should not lie simply because Con­
   92 Cf. Agnew B rief at 9 (asserting that acquittal based on insanity should not bar impeachment)
   93 See The Federalist No. 79, supra at 533 (Alexander Hamilton) (ambiguous suggestion that insanity, if not other
causes of inability, would justify impeachment and removal), but see id (stating that the Constitution does not
include any provision for removing judges based on “ inability” )
  94 See Office o f Legal Counsel, The Law of Impeachment, Appendix 1: The Concept of Impeachable Offense
10-15 (1974)
   955ee 1 Farrand, supra at 88; 2 id. at 64-69, 116.
   96See id. at 185-86, 499.
   ” Id at 550.


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gress concludes that a judge has taken an erroneous view of the law.98 The
acquittal of President Johnson similarly stands for the proposition that a President
should not be impeached simply because he refuses to carry out a law that he
reasonably believes is unconstitutional. Cf. Presidential Authority to Decline to
Execute Unconstitutional Statutes, 18 Op. O.L.C. 199 (1994) (outlining cir­
cumstances in which President may appropriately decline to execute statutory
provisions he believes are unconstitutional).
   The fourth Mendoza-Martinez factor is whether the sanction will “ promote the
traditional aims of punishment — retribution and deterrence.” We think the answer
here is “ no.” As the discussion of the Impeachment Judgment Clause during
the ratification debates suggests, contemporaries understood the regular criminal
punishments available in addition to removal and disqualification as the vehicles
for exacting retribution. While removal and disqualification are likely to have,
and were intended to have, some deterrent effect, that is true of virtually any
governmental exaction. Accordingly, the Court has reasoned, “ the mere presence
of [a deterrent] purpose is insufficient to render a sanction criminal, as deterrence
 ‘may serve civil as well as criminal goals.’ ” Hudson, 522 U.S. at 105 (citations
omitted); see also United States v. Ursery, 518 U.S. at 292.
   Under the fifth M endoza-M artinez factor, “ whether the behavior to which [they]
appl[y] is already a crim e,” the sanctions that the Senate may impose are not
criminal punishments. O f course, only conduct that is already defined as criminal
will provide a basis for subsequent criminal prosecution of an impeached official,
and thus only cases involving criminal conduct will raise the double jeopardy
issue addressed in this memorandum. But as the development of impeachment
law before the Constitution, the debates at the time of the founding, and the history
of impeachments under the Constitution show, despite the protestations of many
impeachment defendants to the contrary, officials may be impeached and con­
victed for conduct that is not prohibited by the regular criminal laws.99
   The sixth and seventh Mendoza-Martinez factors are whether a purpose other
than punishment may “ rationally” be assigned to the sanction and whether the
sanction “ appears excessive in relation to the alternative purpose assigned.” In
our view, these are the most important considerations for they go most directly
to the ultimate question of legislative (or drafters’ and ratifiers’) purpose. The
same sanction may have either a punitive or a non-punitive purpose and thus may
be characterized as criminal punishment in one circumstance and as a civil sanc­
tion in another. Compare, e.g., Flemming, 363 U.S. at 617 (imprisonment as
punishment); M endoza-M artinez , 372 U.S. at 165 (deprivation of nationality in
one section of the Immigration and Nationality Act as punishment), with Bell v.
Wolfish, 441 U.S. 520, 533-39 (1979) (imprisonment in the context of reasonable

   " S e e , e g , William H Rehnquist, Grand Inquests 114(1992).
   99See Hull & Hoffer, supra at 78, 116-23, 2 6 1 -6 2 ; Michael J. Gerhardt, The Federal Impeachment Process chs.
1, 2, 9 (2d ed 2000); Rehnquist, supra at 274


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

pre-trial detention not punishment); Mendoza-Martinez, 372 U.S. at 164 (inter­
preting Perez v. Brownell, 356 U.S. 44 (1958) as based on view that deprivation
of nationality in another section of Immigration and Nationality Act not punish­
ment). Ultimately it is the purpose for which the sanction is applied that will
determine its character.
   And when it comes to disqualification, the Court has emphasized, from its post-
Civil War bill of attainder decisions to the modem era, that it is the closeness
of the fit between the causes of disqualification and the positions from which
the individual is disqualified that most clearly reveals a non-punitive purpose. In
Cummings, the Court concluded that the disqualifying provision in the Missouri
constitution was a penalty largely because it was “ evident from the nature of
the pursuits and professions of the parties, placed under disabilities by the constitu­
tion of Missouri, that many of the acts, from the taint of which they must purge
themselves, have no possible relation to their fitness for those pursuits and profes­
sions.” Cummings, 71 U.S. at 319; see also Garland, 71 U.S. at 379-80. In Dent
v. West Virginia, 129 U.S. 114 (1889), a decision upholding West Virginia’s med­
ical licensure statute, Justice Field, who had written the majority opinions in both
Cummings and Garland, distinguished those decisions by explaining that they
turned on the conclusion that “ as many of the acts from which the parties were
obliged to purge themselves by the oath had no relation to their fitness for the
pursuits and professions designated, . . . the oath was not required as a means
of ascertaining whether the parties were qualified for those pursuits and profes­
sions, but was exacted because it was thought that the acts deserved punishment.”
Id. at 126; see also Hawker v. New York, 170 U.S. 189, 198-99 (1898). More
recently, in Flemming v. Nestor, 363 U.S. 603 (1960), the Court endorsed the
same view: “ Where the source of legislative concern can be thought to be the
activity or status from which the individual is barred, the disqualification is not
punishment even though it may bear harshly upon one affected. The contrary is
the case where the statute in question is evidently aimed at the person or class
of persons disqualified.” Id. at 614.
   Here, the core “ source of the legislative concern,” abuse of federal office, is
precisely “ the activity or status from which the individual is barred.” The non-
punitive purpose which may rationally be assigned to removal and disqualification
is keeping government authority out of the hands of those who have demonstrated
their disregard for the obligations of public office. In relation to that purpose,
these sanctions, far from being excessive, are deftly tailored. Unlike the prohibi­
tions in Cummings and Garland, they do not reach beyond the exact sphere of
the misconduct and thus the threat: federal office.
   The Court’s statement in Cummings that disqualification in an impeachment
judgment constitutes punishment does not dissuade from concluding that such
disqualification is not punishment within the meaning of the Double Jeopardy
Clause. The statement in Cummings was dictum unsupported by any reasoning

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concerning the special character or function of impeachment proceedings.100
Moreover, as the Court’s more recent bill of attainder decisions suggest, the range
of sanctions that count as punishment for purposes of the Bill of Attainder Clause
may well be broader than the range of penalties that amount to criminal punish­
ment under the Double Jeopardy Clause. In Selective Service System v. Minnesota
Public Interest Research Group, 468 U.S. 841 (1984), the Court stated that it
looks to three considerations in determining whether a statute inflicts punishment
for bill o f attainder purposes: “ (1) whether the challenged statute falls within the
historical meaning of legislative punishment; (2) whether the statute, ‘viewed in
terms of the type and severity o f burdens imposed, reasonably can be said to
further nonpunitive legislative purposes’; and (3) whether the legislative record
‘evinces a congressional intent to punish.’ ” Id. at 852 (quoting Nixon v. General
Servs. Admin., 433 U.S. 425, 473, 475-76 (1977)). The second of those criteria
is quite similar to the sixth M endoza-Martinez factor. But the Court’s recent bill
of attainder criteria leave out a number of the Mendoza-Martinez factors that
would tend to narrow the class of punitive sanctions — whether the sanction con­
stitutes an affirmative disability or restraint, whether a finding of scienter is nec­
essary, and whether the conduct to which it applies is already criminal. Recog­
nizing that criminal punishments under the Double Jeopardy Clause may form
a subset of punishments under the Bill of Attainder Clause also helps relieve the
apparent tension between, on the one hand, the bill of attainder decisions’ asser­
tions that disqualification from a profession constitutes punishment, and, on the
other, H elvering' s and Hudson's holdings that bars on participation in particular
professions did not amount to punishment within the meaning of the Double Jeop­
ardy Clause.
   On balance, then, we conclude that removal and disqualification when imposed
by the court of impeachments are best seen as special civil sanctions rather than
as criminal punishments. The historical evidence demonstrating the founders’
intent to break with the English tradition of criminal punishments and to codify
the American practice of limited impeachment sanctions, the record of impeach­
ment trials showing the House’s and Senate’s endorsement of that view, and even
the criteria of current double jeopardy law all support the conclusion that the sanc­
tions the Constitution places in the Senate’s hands are not criminal punishments
within the meaning of the Double Jeopardy Clause.101

   100 M oreover, Cum mings' flat statement that disqualification upon impeachment constitutes punishment seems
inconsistent with its own emphasis on whether the sancuon is closely tied to fitness to hold the office or practice
the occupation, an em phasis stressed in several o f its later decisions.
   101 Having considered the Impeachment Judgment Clause and the Double Jeopardy Clause at some length, we
should briefly note that we think the Due Process Clause o f the Fifth Amendment does not create a bar to prosecution
following acquittal by the Senate. The Due Process Clause incorporates the guarantees of the Double Jeopardy Clause,
see Benton v. Maryland, 395 U.S. 784 (1969), but it offers little, if any, additional protection, see Dvwhng v United
States, 493 U.S 342, 3 52-54 (1990) ( ‘‘Beyond the specific guarantees in the Bill of Rights, the Due Process Clause
has limited operation. . . . We decline to use the Due Process Clause as a device for extending double jeopardy
protection to cases where it would otherwise n o t extend.” ) In the special circumstance of prosecutions following
    Whether a Former President May Be Indicted and Tried fo r the Same Offenses fo r Which He was
                       Impeached by the House and Acquitted by the Senate

   III. The 1980s Impeachment Trials

   The “ case law” that gives meaning to the constitutionally defined process of
impeachment is made largely by Congress. The three impeachment trials carried
out during the 1980s bolster the proposition that the Constitution permits prosecu­
tion of a former official for the same offenses of which he has been acquitted
by the Senate.
   After a 50-year hiatus as a court of impeachments, the Senate tried and con­
victed three district court judges during the 1980s. In each case, the defendant
had previously been prosecuted in the courts. In each case, the defendant chal­
lenged the propriety of his impeachment both in court and before Congress. As
a result, these proceedings gave the courts and Congress an opportunity to address
whether former conviction or acquittal in the courts should bar trial before the
Senate for the same offenses. One district court and both houses of Congress
concluded that prior criminal judgments did not preclude impeachment and
conviction for the same offenses.
   Judge Harry E. Claiborne and Judge Walter L. Nixon were both tried and con­
victed of federal offenses.102 Although they were not the first federal judges to
be found guilty of crimes while in office, they were the first to refuse to resign
their judicial posts.103 The House thus impeached them for the offenses of which
they had already been convicted (as well as other conduct) and the Senate tried
and convicted them and removed them from office.
   Neither Claiborne nor Nixon directly argued to the House or Senate that double
jeopardy should bar their impeachment and trial. On the contrary, in Claiborne’s
case the House managers contended that the House and Senate should each be
bound by the guilty verdicts rendered by the jury that had sat in the judge’s
criminal trial, and Claiborne argued that the impeachment process was distinct
from regular prosecution and that separation of powers and due process concerns

impeachment trials, the Constitution establishes the process that is due For the reasons given in the last two sections
of this memorandum, we believe that process includes the possibility o f prosecution following acquittal by the Senate
   In individual cases, parties acquitted by the Senate and then prosecuted in the courts for the same offenses might
raise due process claims based on the particular circumstances of their cases. For example, an individual might
argue that the extensive publicity surrounding his impeachment by the House and tnal in the Senate made it impos­
sible for him to receive a fair tnal in the courts. See, e g , Nebraska Press A ss'n v. Stuart, 427 U S . 539, 551-
56 (1976). We do not address these sorts o f as-applied due process claims. Our analysis is limited to determining
whether the Constitution as a general matter prohibits or permits criminal prosecution for the same offenses of
which a party was acquitted by the Senate.
   ,02Claibome. a district judge for the District o f Nevada, was convicted in 1984 on two counts of willfully under­
reporting his income on federal income tax returns After Claiborne was indicted, he filed a motion to quash, claiming
that the Consutution required that he be impeached and removed from office before he could be criminally indicted.
The district court rejected the mouon, and on interlocutory review a special panel of three circuit court judges
from outside Claiborne’s circuit affirmed United States v. Claiborne, 765 F.2d 784, 788-89 (9th Cir 1985); 781
F.2d 1327, 1327-30 (Reinhardt, J., dissenting from denial o f rehearing en banc). Nixon, chief judge of the District
Court for the Southern District o f Mississippi, was convicted in 1986 of two counts of peijury before a grand jury
(and acquitted o f one count of bribery and one other count o f pequry) See United States v. Nixon, 816 F 2d 1022,
1023-25 (5th Cir. 1987)
   103 See United Slates v Isaacs, 493 F 2 d 1124 (7th Cir 1974) (Circuit Judge Otto Kemer), see generally Joseph
Borkrn, The Corrupt Judge (1962)


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required the House and Senate to do their own factfinding.104 In both cases, the
Senate accepted the evidence from the prior criminal trials, took some evidence
of its own, and apparently did not consider itself bound by the juries’ verdicts.105
   Although neither the House nor the Senate squarely passed on double jeopardy
challenges in the Claiborne and Hastings cases, the fact that they impeached, tried,
and convicted the defendants indicates that they found that prior conviction was
no bar to trial before the Senate on the same charges.106 The House’s and Senate’s
actions thus suggest that they did not consider trial before the Senate an instance
of jeopardy within the meaning of the Double Jeopardy Clause.
   It may be argued that, although trial before the Senate is an instance of jeopardy,
the Impeachment Judgment Clause permits such trial following criminal convic­
tion. That Clause expressly allows for criminal trial after conviction by the Senate.
So, one might argue, it permits the reverse sequence as well: trial before the
Senate following criminal conviction. By similar logic, if the Impeachment Judg­
ment Clause bars prosecution following Senate acquittal, it should bar trial in
the Senate following acquittal in the courts. In carrying out the impeachment trial
of Judge Alcee Hastings, however, the Senate rejected this view that the relation­
ship between criminal prosecution and impeachment trials could turn on whether
the prior judgm ent was a conviction or an acquittal.
   Following a jury trial, Judge Alcee Hastings was acquitted in 1983 of conspiring
to take a bribe and of obstructing justice. In 1988, pursuant to 28 U.S.C. § 372(c),
the 11th Circuit Judicial Council certified to the Judicial Conference of the United
States that Hastings had engaged in conduct that might constitute an impeachable
offense and the Judicial Conference made a similar certification to the House of
Representatives. The House impeached Hastings in 17 articles, the first of which
was in substance the bribery charge upon which he had been acquitted and 14

   104 See 1 Report o f the Senate Impeachment T n a l Committee. Hearings Before the Senate Impeachment Trial
Committee. 99th Cong. 22 -2 5 , 4 4-69, 108-10, 147-67, 170-86, 252-71 (1986) ("R eport of the Claiborne Senate
Impeachment Trial C om m ittee” ) Claibome apparently argued that if the Senate were to accept the House managers’
view that they were bound to convict based on the jury verdict, that would violate the double jeopardy ban on
multiple punishments See Claibom e Tnal Proceedings, supra at 57, 60-61, 207-08 Apparently accepting that the
Senate had resolved these matters in the Claibome case, Nixon did not squarely raise them In the course of opposing
a House m anagers’ motion for the Senate to accept the entire record of his cnminal tnal, Nixon bnefly argued
that cnm inal prosecutions and impeachment tnals were “ independent” proceedings. 1 Report of the Claibome Senate
Impeachment T nal Committee, supra at 212, 213.
   105See, e.g., Claibom e T nal Proceedings, supra at 303-04 (statement of Sen Hatch), 312 (statement of Sen
Dixon), 314 (statement o f Sen. Specter), 340 (statement o f Sen Mitchell), 341-43 (statement of Sen. Mathias),
352-53 (statement o f Sen Bumpers), Walter N ixon Tnal Proceedings, supra at 443-45 (statement of Sen Levin),
446—48 (statement o f Sen. Grassley), 452 (statement of Sen. Jeffords), 459 (statement of Sen Murkowski)
   106 Claibom e was convicted on three of four articles o f impeachment The three articles upon which he was con­
victed by the Senate all charged the income tax evasion upon which he had previously been convicted in the courts
He was acquitted on the fourth (article III), which charged him with the fact of having been convicted of tax evasion
m court. See Claibom e T nal Proceedings, supra at 290-97.
  Nixon was convicted on two impeachment articles and acquitted on a third The two upon which he was convicted
by the Senate charged the lying before a grand jury upon which he had previously been convicted in court. See
W alter Nixon Trial Proceedings, supra at 4 3 2 -3 4 ; 4B Report o f the Senate Impeachment Trial Committee on the
Articles Against Judge Waller L Nixon, Jr Hearings Before the Senate Impeachment Trial Committee, 101st Cong
469-77, 493 (1989). The third charged a series of false statements, including some made to the grand jury and
some made to a Justice Department attorney and an FBI agent. See Walter Nixon Trial Proceedings, supra at 6.


                                                       150
    Whether a Former President May Be Indicted and Tried fo r the Same Offenses f o r Which He was
                        Impeached by the House and Acquitted by the Senate

of which alleged that he had repeatedly lied under oath at his criminal trial. In
1989, the Senate tried and convicted Hastings on the first article and eight of
the ones charging lying at his criminal trial.
   The Investigating Committee of the Eleventh Circuit Judicial Council, which
consisted of three circuit judges and two district court judges, briefly considered
whether Judge Hastings’ acquittal should bar his impeachment by the House and
trial by the Senate (and thus the Committee’s making of a recommendation of
impeachment). They concluded that it should not for three principal reasons.107
First, the Committee thought it obvious that a conviction in the courts would not
bar impeachment and legislative trial, and they could see no distinction between
convictions and acquittals in this respect. Second, they reasoned that “ impeach­
ment does not serve the same purpose as a criminal prosecution. Impeachment
is remedial and designed to protect the institution of government from corrupt
conduct.” 108 Third, they noted that the standard of proof was higher in a criminal
prosecution than in an impeachment trial.109
   The House Judiciary Committee also found no double jeopardy bar. The Com­
mittee took the view that “ impeachment is not a criminal proceeding” because
the possible sanctions upon conviction are “ remedial or prophylactic, rather than
criminal or punitive.” 110 The House adopted the articles by a vote of 413-3.111
   Just before the Senate took up the House’s charges, Judge Hastings brought
suit against the Senate and some of its officers seeking to enjoin his impeachment
trial on double jeopardy grounds, among others. District Judge Gerhard Gesell
rejected Hastings’ double jeopardy contention and dismissed the action. Judge
Gesell reasoned as follows:

             Impeachment trials are sui generis: in several instances in the
          Constitution, impeachment is distinguished from criminal pro­
          ceedings. The accused has no right to a jury, and the President may
          not pardon a person convicted by impeachment. The Framers under­
          stood that impeachment trials were fundamentally political, which
          seems to indicate that impartiality — however much it has been
          present and is to be desired — is not guaranteed. It is clear that
          the federal rules of evidence do not apply in impeachment trials,
          and the Constitution itself does not require unanimity among the
          Senators sitting in judgment. Senators determine their own burdens
          of proof: they need not be persuaded beyond a reasonable doubt
          that the defendant committed each and every element of every
   107 In the Matter o f the Impeachment Inquiry Concerning U.S. District Judge Alcee L Hastings. Hearings Before
the Subcommittee on Criminal Justice o f the House Comm on the Judiciary. 100th Cong app 1, at 347—49 (1987).
   108 Id at 348
   109 The Committee also noted that it had considered evidence that had not been presented to the jury. Id at
349.
   "°H .R . Rep. No. 100-810, at 62 (1988)
   111 134 Cong Rec 20,221 (1988); see id. at 20,206-22


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         Article. Deviating from English precedent, the Framers sharply lim­
         ited the remedies or punishment available upon conviction to
         disqualification and removal from office . . . .

H astings v. United States Senate, 716 F. Supp. 38, 41 (D.D.C. 1989). Judge Gesell
read the Impeachment Judgment Clause as “ acknowledging] separate and dif­
ferent roles for the executive’s power of prosecution and the legislature’s impeach­
ment powers. It is unthinkable that the executive branch could effectively prevent
an impeachment by purporting to try a judge or that the judiciary could prevent
an impeachment by accepting a plea. Rather, the executive and legislative
branches have different roles to play if a judge engages in criminal behavior.”
Id. at 42. The court of appeals affirmed on non-justiciability grounds rather than
reaching the merits of any of Judge Hastings’ contentions. Hastings v. United
States Senate, 887 F.2d 332 (D.C. Cir. 1989) (unpublished).
   Judge Hastings renewed his double jeopardy argument before the Senate in a
motion to dism iss.112 He made the expressio unius argument based on the
Impeachment Judgment Clause, urging that the Clause “ creates an express excep­
tion for a ‘party convicted’ of an impeachable offense[, but] no exception for
a p a rty acquitted.” 113 He pointed out that Madison’s proposed double jeopardy
clause had included an exception for impeachments, which had been deleted by
the Senate. He noted the constitutional provisions suggesting that an impeachment
trial is a criminal proceeding, and he argued that the Mendoza-Martinez factors
pointed in the direction of treating impeachment trials as criminal proceedings.
Finally, he argued that the “ core policies” promoted by the double jeopardy rule
favored prohibiting Senate trials following acquittal in the courts. As the Supreme
Court stated in Green v. United States, 355 U.S. 184, 187-88 (1957), “ [t]he
underlying idea, 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 compel­
ling 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.”
  The Senate denied Hastings’ motion by a vote of 9 2 -1 .114 In statements inserted
into the record following the final vote to convict, several Senators addressed
the double jeopardy issue. They explained their judgment that trial by the Senate
was not a criminal proceeding and that it therefore did not constitute an instance
of jeopardy within the meaning of the Double Jeopardy Clause.115

  112 Hastings M otions to Dismiss, supra at 48-66, Hastings T nal Proceedings, supra at 18-29
  113 Hastings Motions to Dismiss, supra at 49
  114 Hastings Trial Proceedings, supra at 55.
  l]5 ld. at 711 (statement o f Sen. Bingaman), 7 14-44 (statement of Sen Specter), 761 (statement of Sen Hatch),
773 (statem ent o f Sen Dole), 776-77 (statement o f Sen Lieberman)


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

   The Hastings impeachment trial provides additional support for the notion that
an impeachment trial is not a jeopardy within the meaning of the Double Jeopardy
Clause and that an acquittal by the Senate should not block a criminal prosecution
for the same offenses.
   We recognize that several arguments might be made to limit the significance
of the Hastings case (and of the Claibome and Nixon cases) for the question
we are addressing, but we find none of them convincing.
   First, one might argue that trial in the Senate following acquittal in the courts
(as in the Hastings case) is different from trial in the courts following acquittal
in the Senate (the situation we are considering) because of the different standards
of proof required in the two proceedings. A jury verdict of not guilty means the
prosecution has failed to prove beyond a reasonable doubt that the defendant is
guilty. The Senate might conclude that such a verdict presented no obstacle to
their trial of the defendant on the same charges because, quite consistently with
the jury’s verdict, they might conclude that the House managers had shown, under
some lower standard of proof (whether preponderance or clear and convincing),
that the defendant had committed the charged acts. The reverse sequence would
still be impermissible because a verdict of not guilty in the Senate under the lower
standard of proof would be inconsistent with a finding of guilty under the more
demanding beyond-a-reasonable doubt standard required in court.
   We find this explanation of the significance of the Hastings case unconvincing
for two reasons. First, the argument concerns collateral estoppel — the principle
that an issue finally resolved in one proceeding as between two parties may not
be re-examined in a subsequent proceeding — not double jeopardy. It is true that
the resolution of a factual issue in favor of a defendant under the beyond-a-reason-
able-doubt standard is no bar to consideration of the same issue under a more
lenient standard of proof. Thus, for example, collateral estoppel is no bar to a
civil proceeding alleging that a defendant committed certain acts following
acquittal of the same defendant on criminal charges requiring proof of the same
acts. See, e.g., Helvering v. Mitchell, 303 U.S. 391, 397-98 (1938). But, as the
Supreme Court has repeatedly explained, even where collateral estoppel creates
no obstacle to a successive trial, double jeopardy still may. That is because it
is the risk of criminal punishment, regardless of the form of the proceeding or
the standard of proof, that determines whether the two proceedings constitute
impermissible successive jeopardies. See, e.g., id. at 398—405. Thus, for the Senate
to try Judge Hastings after his criminal trial, it would not have been enough for
the members of that body to have concluded that the reduced standard of proof
removed any collateral estoppel problem. They would also have to have concluded
that trial before the Senate was not an instance of jeopardy.
   Second, we find little, if any, evidence in the record of the Senate trial of Judge
Hastings suggesting that the Senators relied on this argument. Judge Hastings pre­
sented the double jeopardy issue squarely to the Senate, which considered it both

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                           Opinions o f the Office o f Legal Counsel in Volume 24


in a motion to dismiss and in its final judgm ent.116 Of the fifteen Senators who
inserted statements in the record explaining their final votes, several addressed
the double jeopardy question, but none did so in terms of the difference in the
standards of proof.117
   One might also try to cabin the significance of the Hastings case by contending
that the Senate’s decision to try Judge Hastings turned on the judicial character
of his office and that the decision therefore does not serve as a precedent for
the treatment of executive branch officials. The argument would go as follows.
The “ good behavior” standard governing judicial tenure imposes standards of
propriety, and of the appearance of propriety, on federal judges that do not apply
to executive officials. Because of these particularly rigorous standards of behavior,
conduct short of the criminal may nonetheless be outside the bounds of judicial
good behavior. Thus acquittal of serious crimes might still leave a judge open
to fair condemnation as having deviated from the path of good behavior and thus
as meriting removal from office.118
   Even if this argument for the significance of the good behavior standard were
correct as a theoretical possibility, the records of the Hastings impeachment pro­
ceedings offer little, if any, evidence suggesting that the standard influenced the
Senate’s resolution of the double jeopardy issue it confronted.119
   Finally, regarding the Claibome and Nixon cases, one might argue that the Sen­
ate’s decision to proceed rested not on a judgment that Senate trial did not con­
stitute an instance of jeopardy but on a decision that the need to remove federal
judges who had been convicted of felonies was so imperative that it outweighed
otherwise applicable double jeopardy principles. After all, federal judges, unlike
federal executive officials, have life tenure, so impeachment provides the only

   il6 See Hastings Motions to Dismiss, supra at 48-66; Hastings Tnal Proceedings, supra at 20-22, 38, 55; id.
at 735-41 (statement o f Sen Specter), 772-73 (statement o f Sen. Dole); 776-77 (statement of Sen. Lieberman);
799 (statement o f Sen. Kohl). For example, in his statement on the floor of the Senate opposing Judge Hastings’s
motions to dismiss, House M anager Bryant stated.
         Finally, the Senate should not ignore the 200 years o f precedent establishing that Judge Hastings’ double
      jeopardy argument has no sound legal o r histoncal basis.
         R espondent’s argument rests entirely on a single false premise that impeachment is somehow criminal
      in nature. Judge Hastings must convince you that an impeachment tnal is a criminal proceeding, for then
      and only then would double jeopardy even arguably apply. Impeachment, as all precedents indicate, is
      not a cnm inal proceeding. Rather, the Constitution establishes — and the framers, the Congress and constitu­
      tional scholars have consistently concluded — that impeachment is a remedial proceeding designed to protect
      the institutions o f Government and the A m encan people from abuse of the public trust In this country,
      impeachment has never functioned as a cnminal process. Impeachment does not require an indictable
      offense as a basis for removal from office. Impeachment does not require proof beyond a reasonable doubt
      to establish the allegations. Impeachment does not call for trial by jury. Impeachment is not subject to
      Presidential pardon And above all, the purpose o f impeachment is not to punish an individual, but rather
      to preserve and protect our constitutional form o f Government
Id at 38
   i n See Hastings Trial Proceedings, supra at 735-41 (statement of Sen. Specter), id. at 772-73 (statement of Sen
Dole); id at 776-77 (statement o f Sen. Lieberman), id at 799 (statement of Sen Kohl)
   118See, e.g., Ritter Trial Proceedings, supra at 644-45 (statement of Sens Borah, LaFollette, Frazier, and
Shipstead), id. at 645-47 (statement of Sen. Thomas).
   119See Hastings T nal Proceedings, supra at 709-99 (Senators’ statements), id at 758 (statement of Sen Grassley),
id at 773 (statement o f Sen. Dole); see also id at 24 (statement o f counsel for Judge Hastings).


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

political mechanism to remove them from office. If the Senate had proceeded
on that basis, we would expect to find some discussion of the dilemma involved.
We are aware of none in the record of those proceedings.
  The three judicial impeachment trials of the 1980s support the conclusion that
the Senate does not view impeachment trials as instances of jeopardy within the
meaning of the Double Jeopardy Clause. The Hastings case, moreover, dem­
onstrates that the Senate sees no difference between prior acquittal and prior
conviction in this regard.

  IV. Conclusion

  We conclude that the Constitution permits a former [’resident to be criminally
prosecuted for the same offenses for which he was impeached by the House and
acquitted by the Senate while in office.
  As the length of this memorandum indicates, we think the question is more
complicated than it might first appear. In particular, we think that there is a reason­
able argument that the Impeachment Judgment Clause should be read to bar
prosecutions following acquittal by the Senate and that disqualification from fed­
eral office upon conviction by the Senate bears some of the markers of criminal
punishment. Nonetheless, we think our conclusion accords with the text of the
Constitution, reflects the founders’ understanding of the new process of impeach­
ment they were creating, fits the Senate’s understanding of its role as the impeach­
ment tribunal, and makes for a sensible and fair system of responding to the mis­
deeds of federal officials.

                                                            RANDOLPH D. MOSS
                                                          Assistant Attorney General
                                                           Office o f Legal Counsel




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