Constitutional Question

[onejayhawk]

Clearly, if a person is impeached, then that person can also be tried in civil and/or criminal court. This is expressly stated in the Constitution.

Article 1

• Section 3
  • Clause 7
  • Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

The question is whether an impeachment acquittal will still allow trial on the same charges. Case law seems to say yes, but I am not clear why. The argument that one is political and one is legal seems naive. The stronger argument seems to be that the Constitution excepts impeachment from double jeopardy. However, this would raise the question as to whether the exception is limited to convictions or general.

What do you think?

 

[Birdjaguar]

Clearly, if a person is impeached, then that person can also be tried in civil and/or criminal court. This is expressly stated in the Constitution.

Article 1

• Section 3
  • Clause 7
  • Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

The question is whether an impeachment acquittal will still allow trial on the same charges. Case law seems to say yes, but I am not clear why. The argument that one is political and one is legal seems naive. The stronger argument seems to be that the Constitution excepts impeachment from double jeopardy. However, this would raise the question as to whether the exception is limited to convictions or general.

What do you think?

Impeachment is not a legal process it is a political one not subject to the "normal" rules of jurisprudence. Inciting a riot also happens to be a violation of criminal law. to convict in a court of law will require a different set of standards be met.

 

[onejayhawk]

Impeachment is not a legal process it is a political one not subject to the "normal" rules of jurisprudence. Inciting a riot also happens to be a violation of criminal law. to convict in a court of law will require a different set of standards be met.

You say that it's a political process and not a legal one, but what is your basis for the distinction?

If there is a legal standard of either incitement or insurrection which applies to the Trump impeachment, I have not seen it.

J

 

[Birdjaguar]

You say that it's a political process and not a legal one, but what is your basis for the distinction?

If there is a legal standard of either incitement or insurrection which applies to the Trump impeachment, I have not seen it.

J

Here are some links on the topic and a quote from The Hill.

Still, the founders knew that the president and other executive officials would be unique cases if they breached the bounds of legal and ethical conduct. Therefore, the power to impeach was given to Congress. As the Constitution simply says, the House has “the sole power of impeachment” while the Senate holds “the sole power to try all impeachments.” As for the result of the impeachment trial, the Constitution limits the Senate solely to remove the convicted from office and bar them from holding future office, “but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment” under the law.

Separating the impeachment process from the other legal liabilities of the impeached was a clear delineation that impeachment was in a different realm from the legal system. Further, in the Federalist Papers, Alexander Hamilton wrote of impeachment, “The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”

https://thehill.com/opinion/judiciary/465389-why-impeachment-is-a-political-act

https://www.findlaw.com/litigation/...achment-the-legal-standard-and-procedure.html

https://www.law.cornell.edu/constitution-conan/article-2/section-4/impeachment

 

[EgonSpengler]

You say that it's a political process and not a legal one, but what is your basis for the distinction?

As I understand it, it's because the penalty for impeachment is removal from office, and possibly disbarment from holding the office in the future. There are no criminal penalties for impeachment. In essence, impeachment is an elaborate firing, for cause. An official gets impeached for failing to do their job or for failing to uphold their oath of office, which of course could include anything that would also get them arrested.

 

[IglooDame]

You say that it's a political process and not a legal one, but what is your basis for the distinction?

If there is a legal standard of either incitement or insurrection which applies to the Trump impeachment, I have not seen it.

Surely the distinction is that impeachment does not require a violation of the law per se.

The mechanism appears legal - the House essentially indicts the target and the Senate is where the trial is performed, but have you ever seen where members of a jury are allowed to conspire with the prosecution or defense before and during the trial?

 

[onejayhawk]

Here are some links on the topic and a quote from The Hill.
https://thehill.com/opinion/judiciary/465389-why-impeachment-is-a-political-act
https://www.findlaw.com/litigation/...achment-the-legal-standard-and-procedure.html
https://www.law.cornell.edu/constitution-conan/article-2/section-4/impeachment

I had seen the Cornell article before, but the question remained.

It was suggested elsewhere that the distinction is more internal vs external.

Surely the distinction is that impeachment does not require a violation of the law per se.

The mechanism appears legal - the House essentially indicts the target and the Senate is where the trial is performed, but have you ever seen where members of a jury are allowed to conspire with the prosecution or defense before and during the trial?

Not necessarily. Bribery is a criminal offense that is specifically cited as grounds for impeachment. Since the Constitution limits the punishment for impeachment, it needs to be clear that the limitation does not extend further.

J

 

[Birdjaguar]

I had seen the Cornell article before, but the question remained.

It was suggested elsewhere that the distinction is more internal vs external.


Not necessarily. Bribery is a criminal offense that is specifically cited as grounds for impeachment. Since the Constitution limits the punishment for impeachment, it needs to be clear that the limitation does not extend further.

J

As stated in the Findlaw link, the area is murky and opinions vary. One argument for impeachment not being legal process is that it doesn't happen in a real court and punishment is political and not civil or criminal.

 

[onejayhawk]

As stated in the Findlaw link, the area is murky and opinions vary. One argument for impeachment not being legal process is that it doesn't happen in a real court and punishment is political and not civil or criminal.

That's where the internal vs external makes sense.

J

 

[Cutlass]

The actual legal answer is that it is not a settled question because the process hasn't gone far enough often enough to settle it.

 

[Angst]

You say that it's a political process and not a legal one, but what is your basis for the distinction?

If there is a legal standard of either incitement or insurrection which applies to the Trump impeachment, I have not seen it.

J

I don't have time to watch this video, but I think it's the video I've already watched that outlines what impeachment is.

 

[amadeus]

The argument that one is political and one is legal seems naive.

Does an article of impeachment need to be drafted based on violation of an existing U.S. statute?

 

[Lemon Merchant]

Does an article of impeachment need to be drafted based on violation of an existing U.S. statute?

The offense must rise to the level of "High crimes and misdemeanors." I take that to mean that the President must have broken the law in some fashion. But what do I know? I live in Canada.

 

[Birdjaguar]

The offense must rise to the level of "High crimes and misdemeanors." I take that to mean that the President must have broken the law in some fashion. But what do I know? I live in Canada.

No, no actual law has to be broken to be impeached. "High crimes and misdemeanors" is non specific and is up to the House to determine in their wisdom. Now if the president does commit and actual crime, he apparently can be prosecuted later for that crime in a criminal or civil court.

 

[Lemon Merchant]

Then hopefully Trump faces a charge in court for fomenting rebellion, or sedition, if not outright treason. Something has to stick.

 

[Birdjaguar]

Then hopefully Trump faces a charge in court for fomenting rebellion, or sedition, if not outright treason. Something has to stick.

I think the most likely winners are GA election tampering and NY corruption. I think the incitement to riot in DC is tougher and more politically explosive.

 

[uppi]

Simple analogy: if an employee murders a customer, they are likely to get fired and tried under criminal law.

I don't think anyone would argue that this is double jeopardy. Even if the person in question goes to court to fight the firing.

 

[TheMeInTeam]

As I understand it, it's because the penalty for impeachment is removal from office, and possibly disbarment from holding the office in the future. There are no criminal penalties for impeachment. In essence, impeachment is an elaborate firing, for cause. An official gets impeached for failing to do their job or for failing to uphold their oath of office, which of course could include anything that would also get them arrested.

Impeachment does imply actual crime, however, per the constitution. What we witnessed was a bill of attainder. With a few bits of falsified evidence by the prosecution (dates, doctoring evidence submitted). And the basis for impeachment was for actions that were not violation of law.

It was a complete joke and it got the outcome one might expect.

If Trump sees legal consequences, it won't be over anything to do with the capital riot.

No, no actual law has to be broken to be impeached. "High crimes and misdemeanors" is non specific

???

What is your operating definition for the terms "high crime" and "misdemeanor"? The former is objectively a violation of actual law. If your standard for "misdemeanor" in the context of impeachment doesn't require a law to be broken, you don't have a standard for impeachment.

Now if the president does commit and actual crime, he apparently can be prosecuted later for that crime in a criminal or civil court.

This, however, is correct. Though it's an unsettled legal question to what extent a president (while still president) could pardon himself.

Then hopefully Trump faces a charge in court for fomenting rebellion, or sedition, if not outright treason. Something has to stick.

Not a chance in hell. Consider the case history on this and it would be a massive break in precedent. They'd be much better off going after him for taxes or something similar. Though I'm not a fan of "find me a man and I'll find you a crime" type conduct.

I think the most likely winners are GA election tampering and NY corruption.

GA election tampering would be interesting. If Trump's money is where his mouth is (in the figurative sense), he would welcome this because it would open the entire GA election process to discovery and forcibly grant him the platform the courts refused. I would be surprised if anybody were willing to bring that or NY corruption to court. Trump might be guilty in those or he might not be, and I don't know to what extent. But I suspect a lot of folks surrounding those want nothing to do with the legal process of discovery and the resulting publicity that would bring.

Simple analogy: if an employee murders a customer, they are likely to get fired and tried under criminal law.

That's not a useful analogy in this context. As a simple fact of law the actions Trump took leading up to the riot factually don't align with the allegations made in the impeachment.

Presumably, an employee accused of murder who actually just said "I hate these types of players in Call of Duty and wish they would die" who then got fired on the basis of him committing murder would have a case against both the firing and the false allegation.

 

[uppi]

That's not a useful analogy in this context. As a simple fact of law the actions Trump took leading up to the riot factually don't align with the allegations made in the impeachment.

???
Whether the allegations are true or not has no bearing on the constitutional question on whether there can be a criminal trial as well.

 

[amadeus]

No, no actual law has to be broken to be impeached. "High crimes and misdemeanors" is non specific and is up to the House to determine in their wisdom. Now if the president does commit and actual crime, he apparently can be prosecuted later for that crime in a criminal or civil court.

Thank you, and @Lemon Merchant this is the direction I was going with the question. As no specific law needs to be cited for an impeachment, with a conviction resulting in removal from office, a criminal or civil trial thereafter would not constitute double jeopardy as I see it.

That’s where the “political” aspect comes in—it is up to the House to determine whether to submit the articles, it’s seemingly not required to be based on statute. Criminal and civil cases don’t go through this same process.