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Arguments used to support the immunity claim – for example, his impeachment in the wake of the 2021 Capitol riot meant that further prosecution posed a threat of “double jeopardy” – similarly surprised experts. But the D.C. Circuit still had to consider and parse those arguments and present a detailed rebuttal to what Mr. Trump’s lawyers and his allies had submitted.
In a ruling on the issue released Tuesday morning, the court rejected the idea that Trump’s impeachment would bar criminal prosecution. Doing so would also weaken Trump’s general reluctance to impeach him and hurt some senators who defend him.
Trump’s lawyers had sought to block the D.C. prosecution by pointing out that Trump was impeached by the House of Representatives after the January 6, 2021, riot, followed by a Senate trial that resulted in his acquittal. He argued that the former president could not be criminally charged by the special counsel because the Fifth Amendment to the U.S. Constitution prevents him from being tried twice for the same crime.
The court directly rejected this argument as follows: “(1) Impeachment does not result in criminal penalties. (2) The indictment does not charge the same offense as the single charge in the impeachment resolution.”
The ruling states that “impeachment is a political process instigated and overseen by Congress.” This is true, and President Trump has sometimes tried to cover it up. He claimed that the impeachments he faced were simply due to political actions by Democrats (rather than being rooted in any actual wrongdoing), and that he subsequently dismissed his two acquittals as apolitical exonerations for his actions. I prefer to treat it as such. They weren’t…
The judgment pointed out this point.
“As a result of the political nature of impeachment proceedings, impeachment acquittals are often unrelated to factual innocence,” the court said.
“The 43 senators who voted to acquit him on charges of incitement of insurrection illustrate this point. The 43 senators who voted to acquit him were based on a variety of concerns, many of whom had no bearing on whether he committed the crime for which he was charged,” the report said.
The ruling is a hodgepodge of reasons offered by senators. Some were procedural, such as Sen. Todd Young’s (R-Ind.) complaint that the House rushed the impeachment itself. Some were political, with Sen. Ron Johnson (R-Wis.) disparaging impeachment as “vindictive and divisive.” The ruling noted that 30 senators opposed impeachment because Trump was no longer president at the time of the trial, which the court called a “jurisdictional” objection.
The same senators, including Senate Minority Leader Mitch McConnell (R-Ky.), came under fire again for the latest ruling. Mr. Trump’s lawyers had argued that he could not be criminally charged unless he was impeached and convicted. If that were the case, the court would find that a former president could never be convicted of crimes committed while in office if the senators’ jurisdictional concerns were a valid reason not to convict. , the court wrote. You have to impeach before you indict, and if you can’t impeach someone who’s out of office, that’s it. Innocence is absurd.
The court argued that the very fact that “impeachment is not a criminal proceeding and cannot result in criminal penalties” suggests that the Fifth Amendment’s double jeopardy protections do not apply. The ruling went on to say that President Trump “has not seriously argued otherwise” and has “explained why he believes non-criminal impeachment could involve the ‘double jeopardy doctrine.’ No,” he said. These horror quotes may rightly be seen as a judiciary rolling its eyes.
There is no mystery why Republican senators refused to convict Trump during his impeachment trial in February 2021. Even then, it was clear to Hill Republicans that their base was firmly attached to Mr. Trump. That means he had to pay a political price in the impeachment trial. Let him take responsibility. Some voted to convict Trump anyway, angering Trump and his base.
President Trump then again used those senators as shields in an attempt to block criminal charges against him. His lawyers argued that the senators’ decision carried so much weight that it was equivalent to a jury verdict. The court therefore had little choice but to point out, “No, it wasn’t.” They were just politicians doing politics.
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