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An exchange between two CNN reporters in a December 14, 2023 video Judge pauses Trump election interference case begins

BLITZER: ...the judge ordering a pause until major appeals play out, potentially delaying Trump's march trial date. Here's CNN senior crime and justice reporter Katelyn Polantz. Katelyn, why is the judge making this move?

POLANTZ: Well, essentially she has to. She doesn't really have another option because in Donald Trump's criminal case, before he goes to trial, the courts have to figure out two things. (1) If Donald Trump can even be tried, he was already tried by the Senate. Is that double jeopardy now that he's charged again in a criminal court of law? So they have to decide that. (2) And also they have to decide a question about presidential immunity...

Is this the first time that such a claim of double jeopardy1 has had to be consider by a court of appeals? Or are there some previous rulings?

1first in the US Senate (legislative branch of government), then again in the judicial branch.

uhoh
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    This shouldn't be hard to figure out as there has only been 20 total impeachment trials in the senate and two of those are for Trump. Should be a quick search to see if any of the others got tried criminally for their crimes. Though both Jack Smith and Trumps lawyers would have to be pretty bad to not have brought up any past rulings on this as they would have to be in one sides favor. https://en.wikipedia.org/wiki/Federal_impeachment_trial_in_the_United_States#List_of_trials – Joe W Dec 14 '23 at 04:29
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    I don't think OP is asking about the argument's merits -- just its novelty. – bdb484 Dec 14 '23 at 08:11
  • @bdb484 And I am suggesting that it is easy to verify that it has never happened before as an impeachment has only happened 20 total times in history with two of them being Trump. What is happening right now with Trump has never happened before in the history of our country. With so few impeachments in history if it had happened one side or the other would be covering it non stop to support their case. – Joe W Dec 14 '23 at 13:35
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    Agreed all around. My comment was directed to @Trish, who has since deleted her comment about the case being frivolous. – bdb484 Dec 14 '23 at 14:12
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    @bdb484 Okay, that makes sense can get confusing when comments get deleted. – Joe W Dec 14 '23 at 14:14
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    For what it's worth, neither Trump's original filing nor Judge Chutkan's ruling mention any direct precedents. You would think that if there was a precedent, one of them would have mentioned it. – Michael Seifert Dec 14 '23 at 18:52
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    @JoeW the comment turned out to become an answer, so I removed it. – Trish Dec 15 '23 at 18:27

2 Answers2

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Nobody has ever tried this argument before because most people are not so foolish as to overlook the fact that the Constitution (Article I, Section 3, Clause 7) explicitly provides for the possibility of a judicial trial in addition to an impeachment:

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 argument isn't simply without merit; it is frivolous.

ceejayoz
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phoog
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    I don't think this language really does anything to help the government's case, as it only applies to officers who have been convicted after impeachment. Trump's argument is that he can't be tried again because he was acquitted. – bdb484 Dec 14 '23 at 14:59
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    @bdb484 The issue is that impeachment isn't criminal in nature and people can get impeached for perfectly legal matters. – Joe W Dec 14 '23 at 15:41
  • "the Party convicted" - Trump was acquitted. If you're convicted, you can get dragged though the regular judicial process as normal. Getting acquitted is not addressed, and looks a lot like double jeopardy. – fectin Dec 15 '23 at 13:24
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    @fectin it would make very little sense to say that you can be tried multiple times only if you've been convincted. It's pretty clear that impeachment isn't jeopardy unless you use a particularly loose reading of the constitution – PC Luddite Dec 15 '23 at 14:39
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    @PCLuddite Isn't that how it is for typical cases of double jeopardy? If you are acquitted at trial, you cannot be tried again for the same crime. If you are convicted and have the decision reversed on appeal, it is in some cases possible for you to be re-tried. As I understand it, in any normal criminal case that gets tried more than once, the defendant cannot have been acquitted the first time. Agree that the bigger issue is that an impeachment merely threatening removal from office is not criminal jeopardy to begin with. – Nuclear Hoagie Dec 15 '23 at 16:48
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    @NuclearHoagie if an appeal is granted, it's not a new trial. It's an opportunity to bring forward evidence that the original trial was flawed. The original trial is effectively void because it was decided you were never fairly tried in the first place. – PC Luddite Dec 15 '23 at 19:21
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    @fectin No, the correct analogy is civil vs criminal proceedings. 5th Amendment explicitly says "jeopardy of life or limb," which does not preclude other remedies, like money. A famous example, OJ Simpson was found not guilty of murder, whereas he was civilly responsible for wrongful death in a separate proceeding. Getting fired from your government job is not "jeopardy of life or limb". Related, you can be criminally tried twice under Federal and State charges, "separate sovereigns" (Gamble v. United States). – user71659 Dec 15 '23 at 23:20
  • @bdb484 the protection against double jeopardy applies after an acquittal as well as after a conviction. In fact it is almost always invoked after acquittal. – phoog Dec 15 '23 at 23:41
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    @fectin double jeopardy means that you cannot be tried for a crime after already being tried for the crime, regardless of the outcome of the first trial. The fact that you can be tried on indictment after being convicted on impeachment clearly implies that you can be tried on indictment after being acquitted on impeachment because it implies that double jeopardy doesn't apply to impeachments. – phoog Dec 15 '23 at 23:43
  • @phoog while there is a reasonable argument that a narrow specific exception to a well-established general rule actually implies a broader, unwritten exception to that general rule, I don't think a bare citation of the narrow exception really makes that argument. – fectin Dec 16 '23 at 00:39
  • @fectin Impeachment isn't trying someone from a crime rather it is deciding if they should be removed from office for some reason. One of the important differences between impeachment and a criminal trial is there are no rules of evidence in impeachment among other things. https://thehill.com/homenews/senate/478089-how-impeachment-differs-from-court-trials/#:~:text=%E2%80%9CThere%20aren't%20any%20rules,charged%20with%20an%20actual%20crime. – Joe W Dec 16 '23 at 16:02
  • @phoog I think we all agree on that. But it's not really relevant to your answer about the impeachment clause. They're totally separate analyses. – bdb484 Dec 17 '23 at 06:03
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    @fectin what general rule? There's no general rule that would apply here. "Double jeopardy" is the common name of a rule based on the "life or limb" clause of the fifth amendment, but in its application it depends on several specific details developed through judicial precedent concerning when jeopardy "attaches" in a criminal trial. There's no general formulation of the rule that would apply to congressional impeachments. – phoog Dec 17 '23 at 08:21
  • @phoog your position is clear; further discussion is beyond the scope of comments. Thanks for the responses. – fectin Dec 18 '23 at 03:08
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It is the first time

Currently, there were 4 impeachment trials of presidents:

  • Johnson in 1868, over longstanding arguments
  • Clinton in 1998/99, over an affair
  • Trump in 2019/20, over interference with the Ukrainian Government
  • Trump in 2021, over the riots of January 6th 2021, including alleged election fraud

As one will easily see, this is the first case that ever has, after an impeachment trial, brought any such argument.

The argument brought by Trump's lawyers has no merit

Double jeopardy is banned in the fifth amendment of the constitution. It reads:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The bolded sentence is the alleged core of the argument, but also its biggest weakness. The problem with framing the impeachment trial as "jeopardy of life or limb" is, that the impeachment trial can only have a single outcome in case of conviction: removal from office. Removal from office does not put someone in danger of being executed or incarcerated, so the senate trial does not attach the required jeopardy in the first place. As such, the Georgia trial is the first trial that puts Donald Trump in "jeopardy of life or limb".

And there's a second problem: "the same offence" means being tried twice for the same act using the same laws. However, even if one were to assume that the senate trial was giving jeopardy of life or limb, he was not tried in any way under Georgia law but a quite different offence in a court that is not Georgia. Georgia is sovereign: A person can be tried by both federal and state courts for the same act for violating different laws. That's the dual sovereignty doctrine. In fact, Palko v. Connecticut, 302 U.S. 319 (1937) and United States v. Lanza 260 U.S. 377 (1922) both explicitly rejected that the double jeopardy clause bolded above barred a state from bringing a case where unsuccessful federal charges had been brought, and vice versa. Lanza brings it to a point with:

11 We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject matter within the same territory. Each may, without interference by the other, enact laws to secure prohibition, with the limitation that no legislation can give validity to acts prohibited by the amendment. Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.

As such, the double jeopardy argument is utterly meritless, as Donald Trump has never been adjudicated in any court before, neither a federal nor a Georgia court for any federal crime or Georgia crime arising from the acts of alleged manipulation of the election.

He was tried in the Senate - which is not a court of law. It is explicitly not a judicial process but a political one that wears the trappings of a judicial process. As such, the prosecution has not exhausted its bite at the apple.

See also:

Trish
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    @Barmar I believe it was for lying in a deposition in the Paula Jones civil case, not lying to Congress. – Acccumulation Dec 15 '23 at 07:20
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    @Acccumulation Whioch is the only punishment it can have, and since that is neither incarceration or death, it is not life or limb – Trish Dec 15 '23 at 11:06
  • 20 different people have been impeached. Presidents aren't the only ones who can be impeached. Several of those impeachments were for criminal matters. Also, Clinton was impeached for perjury and obstruction of justice, not for having an affair. – reirab Dec 15 '23 at 22:02
  • @reirab Of the 20 people, one was an Ex-senator, one was an Ex-War minister, and 14 were Judges. none of these were members of the executive when they were tried: the senator became the example of that senate can not indict senators, and the war minister was out of office and thus they dropped the indictment. – Trish Dec 15 '23 at 22:06
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    @Trish Why would the branch matter? Not that the double jeopardy argument has merit, but, if it did, I'm not sure why it would apply differently to a judge than to a President. (My point here is that the first section either needs to be expanded to cover each of the cases or else removed, as it does not currently seem to prove its point.) – reirab Dec 15 '23 at 22:09
  • @Trish the Senate can't indict anyone -- not impeach anyone. They can only try those who have been impeached by the house of representatives. – phoog Dec 15 '23 at 23:49
  • @phoog wrong word, yes, but they chose that they can't try such people. – Trish Dec 15 '23 at 23:55
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    It's just as flamboyantly idiotic as saying "My homeowner's association has already fined me for dumping garbage in the street, therefore I cannot be charged with littering because double jeopardy." Ditto for "I've already been disbarred as an attorney for my fraudulent behavior, therefore I cannot stand trial for fraud because double jeopardy." Double jeopardy doesn't mean "getting in trouble twice." – barbecue Dec 16 '23 at 16:28
  • My previous comment should have said "cannot indict nor impeach" rather than "cannot indict not impeach." But the Senate also cannot choose to try anyone -- the accused has to be impeached first by the House of Representatives before there can be a trial in the Senate. The Senate cannot act alone. And the prohibition on impeaching members if congress is rather unimportant in the face of the ability of each house to expel its own members by acting alone. – phoog Dec 17 '23 at 08:12