Government

Special Counsel Jack Smith Heaves Heavy Sigh, Deals With Trump's Dumb Shit Double Jeopardy Argument

You keep using that word. I do not think it means what you think it means.

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Donald Trump

(Photo by Isaac Brekken/Getty)

A week from today, Donald Trump will make his case to the DC Circuit as to why Judge Tanya Chutkan erred bigly by tossing his claims of presidential immunity. Trump’s final reply brief, in which he will once again insist that he is being prosecuted for official acts, is due today.

In reality, the former president is charged with obstructing the congressional certification of Biden’s electoral win and attempting to toss out 20 million swing state votes — something which is clearly not part of his official duties. But moving the goalposts isn’t even the weirdest part of this appeal.

That distinction belongs to Trump’s mishmash of claims that his impeachment by the House in January of 2021 and subsequent acquittal by the Senate function as a bar to the current prosecution. The argument is twofold — with each part vying to out-crazy the other.

Trump cites that the Impeachment Clause’s language that “the [impeached] Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law” as supporting the premise that the party not convicted is immune from prosecution ever after. He goes on to insist that impeachment in the House functions as a criminal trial, and thus jeopardy attaches. Never mind that the Impeachment Clause specifically cabins the available sanctions to”removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States,” barring all criminal penalties.

These arguments are so facially ludicrous that the Special Counsel barely bothered to rebut them at the trial court. But since Republicans have now trained themselves to repeat this claptrap with a straight face — mostly by dint of practiced repetition at high decibel —  the Special Counsel is being forced to confront it.

And so, with no small note of exasperation, Jack Smith’s team devoted a fair bit of the response filed yesterday to these “constitutional” claims.

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The rebuttal cites authorities as diverse as Alexander Hamilton and Senate Minority Leader Mitch McConnell. The former, who gets repeatedly name-checked in Trump’s own briefs, specifically argued against having the Supreme Court adjudicate impeachments — reinforcing the conclusion that impeachment is a legislative, rather than criminal, act, and thus jeopardy cannot attach. And the latter claimed that the Senate lacked jurisdiction to impeach a president who had left office, explaining away his vote to acquit on the grounds that Trump could still be held accountable in a court of law.

“President Trump is still liable for everything he did while in office. We have a criminal justice system in this country,” McConnell said. “We have civil litigation. And former presidents are not immune from being held accountable by either one.”

In between Hamilton and McConnell, Judge Randolph Moss (then an assistant AG), authored an OLC Memo in 2000 opining that a former president could indeed be criminally prosecuted for the same conduct which had gotten him impeached. And lest this be dismissed as mere partisan hackery, the direct implication was that his boss Bill Clinton was definitely not in the clear despite his acquittal by the Senate for lying about a blow job.

The Special Counsel also notes that Trump was impeached for incitement, where here he is charged with obstruction of Congress. And much as the former president would like to yaddayaddayadda over the distinction, mumbling that this is “essentially the same conduct,” those two things are not the same.

It’s all so offensively stupid and so transparently generated in an attempt to stall the trial until after the election. And speaking of offensively stupid, the FedSoc has once again dusted off Reagan AG Ed Meese as the front man for an amicus brief making the exact opposite case they’ve all made for 25 years when the subject was Bill Clinton, not Donald Trump. They’ve recently discovered that special counsels are illegal because they aren’t nominated by the president and confirmed by the Senate. Which is ridiculous, but at least it’s novel, so … points for that, at least!

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US v. Trump [District Docket via Court Listener]
US v. Trump [Circuit Docket via Court Listener]

Liz Dye lives in Baltimore where she writes the Law and Chaos substack and appears on the Opening Arguments podcast.

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