Trump Immunity Claim Finds Some Support in Constitution’s Text

Former president Donald Trump is arguing that he has immunity from the allegations that he illegally conspired to stay in office after President Joe Biden won the election. A federal appeals court Jan. 9 seemed to view these claims skeptically, but a close look at the US Constitution—which is a favorite approach of the conservative Supreme Court—doesn’t point to an easy answer to one important question: Can he be tried in a court of law for the crimes he was impeached for, and acquitted of by the Senate.

The Constitution, Article 1, Section 3, Clause 7, states simply:

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 purpose of this clause is two-fold. First, it limits the ability of the US Senate to impose any punishment with the exception of removing a federal official from office and preventing that person from holding any other office.

Second, it permits a criminal prosecution after impeachment and conviction in the Senate, notwithstanding the double jeopardy aspects of being tried twice, once in the Senate and once in a criminal court. This seems straightforward and clear.

However, the negative implications of this clause aren’t as transparent. What if a person is impeached by the House and acquitted by the Senate? One could claim—very reasonably—that the negative implication of the words “the Party convicted” is that if a person is acquitted in the Senate, they may not be tried in any other federal court. After all, they weren’t convicted at their first trial.

The Constitution allows a federal officer to be tried and convicted twice, in violation of its general rule against double jeopardy—once in the Senate and once in a criminal court. But only when that person is convicted is a second criminal trial permitted. The Constitution explicitly permits double jeopardy in cases where the Senate convicts, since the Senate doesn’t punish, but only removes the individual from office.

Consider a simple theoretical case raised in the recent hearing: The president orders SEAL Team 6 to kill a rival. That president is impeached in the House and convicted in the Senate for this murder. Having been removed from office for that crime, the impeachment clause now permits this person to be tried in a federal court for the same crime—murder—and, if convicted, punished.

But, continuing this hypothetical, imagine if this same president were acquitted by the Senate of murder, since they determined that the president didn’t order the hit. In this case, it seems logical that the words “the Party convicted” exclude that president from being tried for murder again, since the Senate acquitted him. We have a well-known rule of constitutional interpretation that the expression of only one idea is the exclusion of other ideas—a second trial in criminal court is only permitted if the Senate convicts. In other words, double jeopardy should apply.

Since the person was tried in the Senate and acquitted, no further trial is possible. As the Department of Justice’s “Opinions” of the Office of Legal Counsel notes in its discussion of this issue, “this argument has some force,” although it ultimately rejects this view based on three ideas.

First, there is no historical record that the Founders, when crafting the Constitution, considered the negative implication of the positive statement above. Second, maybe the negative implication is much more limited. After all, it was designed only to ensure that the Senate couldn’t actually punish government officials (like the British Parliament did and could do), and that this power is left only to courts, whether convicted or not in the Senate.

Third, the Fifth Amendment’s rule against double jeopardy which states, “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” doesn’t apply to impeachments, since there is no risk of life or limb in impeachment, but only removal from office. Thus, maybe the Fifth Amendment’s codification of the double jeopardy rule changed the proper understanding of the impeachment clause. Indeed, amendments can do that.

To make the hypothetical more complex, what happens if this theoretical president—who was impeached for insurrection while in office—is only tried by the Senate after leaving office. And what if some Senators voted to acquit the now-former president since they believed the Senate lacked jurisdiction over federal officials for misconduct done in an office that they no longer held at the time of trial? Maybe such a president then was not actually considered “acquitted,” since a conviction at the impeachment of a person not presently in office is a nullity?

In short, there’s a significant constitutional issue here for the US Supreme Court to decide. And the question is actually quite open. The negative implication of the constitutional text inclines one to think that acquittal by the Senate bars a second trial in federal courts, but the history of the clause might suggest otherwise.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Michael Broyde is professor of law at Emory University and has written about the impeachment process.

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