Constitutional Law

Taking 'legal long shot,' Trump's lawyers point to impeachment judgment clause in immunity argument

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AP Trump Aug 1 indictment

The Aug. 1, 2023, indictment against former President Donald Trump alleges that he spread lies that election fraud changed the outcome of the 2020 election and he actually won. Trump knew that his claims were untrue, the indictment says. Photo by Jon Elswick/The Associated Press.

Lawyers for former President Donald Trump are taking their immunity argument to a federal appeals court after the U.S. Supreme Court on Dec. 22 rejected a request by special counsel Jack Smith to grant certiorari before judgment to quickly decide the issue.

The U.S. Court of Appeals for the District of Columbia Circuit will hear arguments in the case next week, the New York Times reports. At issue is whether Trump is immune from Smith’s election-interference prosecution because it is based on actions that Trump took while in office.

Part of the lawyers’ argument focuses on the impeachment judgment clause, which says impeached parties who are convicted in the U.S. Senate can still be criminally prosecuted, according to the New York Times.

The impeachment judgment clause reads: “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.”

Trump was acquitted in his Senate impeachment trial for allegedly inciting the Jan. 6, 2021, U.S. Capitol riot.

In a “legal long shot” argument, Trump’s lawyers contend that the clause “presupposes that a president who is not convicted may not be subject to criminal prosecution,” the New York Times says.

In a “slightly narrower but still audacious argument,” the lawyers argue that a president who is acquitted by the Senate can’t be prosecuted for the acquitted conduct, the New York Times reports.

Smith argued in his brief that the impeachment judgment clause constrains sanctions available to Congress but places no limits on post-impeachment criminal prosecution.

An acquittal in an impeachment trial isn’t necessarily based on a factual conclusion that the impeached party did not commit impeachment offenses, Smith said. He pointed to statements by at least 31 of the 43 senators who voted to acquit Trump that their vote was at least partly due to the fact that Trump was already out of office, and they didn’t think that there was jurisdiction for the trial.

U.S. District Judge Tanya Chutkan of Washington, D.C., had ruled against Trump on the immunity issue Dec. 1.

“Nothing in the impeachment judgment clause prevents criminal prosecution thereafter,” she wrote.

How Appealing linked to the brief for Trump and additional coverage, while the National Law Journal covered the Supreme Court’s rejection of Smith’s petition for certiorari before judgment.

See also:

“Federal appeals court narrows federal judge’s gag order in Trump election-interference case”

“As 1 judge temporarily lifts Trump gag order, another says he’s ‘way beyond’ warning stage”

“Trump’s election-subversion co-conspirators included DOJ official, 4 other lawyers, indictment says”

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