b'Whether a Former President May Be Indicted and Tried for\nthe Same Offenses for Which He was Impeached by the House\nand Acquitted by the Senate\nT he C onstitu tio n p erm its a form er President to be indicted and tried for the sam e offenses for which\nhe w as im p each ed by the H ouse o f Representatives and acquitted by the Senate.\n\nAugust 18, 2000\nM e m o r a n d u m O p in io n fo r t h e A t t o r n e y G e n e r a l\n\nWe have been asked to consider whether a former President may be indicted\nand tried for the same offenses for which he was impeached by the House and\nacquitted by the Senate.1 In 1973, in a district court filing addressing a related\nquestion in the criminal tax evasion investigation of Vice President Agnew, the\nDepartment took the position that acquittal by the Senate creates no bar to criminal\nprosecution. A 1973 Office of Legal Counsel ( \xe2\x80\x9c OLC\xe2\x80\x9d ) memorandum discussing\nthe same question adopted the same position. As far as we are aware, no court\nhas ever ruled on this precise issue. During the impeachment of Judge Alcee\nHastings in the late 1980s, though, a district court and both the House and Senate\npassed on the related question whether an acquittal in a criminal prosecution\nshould bar an impeachment trial for the same offenses. Each of those bodies con\xc2\xad\ncluded that the Constitution permits an official to be tried by the Senate for\noffenses of which he has been acquitted in the courts. Although we recognize\nthat there are reasonable arguments for the opposing view, on balance, and largely\nfor some of the same structural reasons identified in the United States\xe2\x80\x99s filing\nin the Agnew case and the 1973 OLC memorandum, we think the better view\nis that a former President may be prosecuted for crimes of which he was acquitted\nby the Senate. Our conclusion concerning the constitutional permissibility of\nindictment and trial following a Senate acquittal is of course distinct from the\nquestion whether an indictment should be brought in any particular case.\nThis memorandum has three parts. First, we review the reasoning of the United\nStates\xe2\x80\x99s filing in the Agnew case and of the 1973 OLC memorandum. Second,\nwe consider in greater depth the arguments for and against the constitutional\npermissibility of criminal prosecution of officials for the same offenses of which\nthey have been acquitted by the Senate. Third, we summarize and consider the\nsignificance o f the Hastings impeachment process and of the Senate trials of two\n1 In the context o f successive trials in the courts, double jeopardy claims often raise the preliminary question\nw hether the offenses charged in the second proceeding are the same as those that formed the basis for the first\nproceeding. See, e g ., United States v. Dixon, 509 U.S. 688, 696 (1993); Blockburger v United States, 284 U.S\n299 (1932). W e understand the question posed to assume that this issue has been resolved, and thus we express\nno view on how the issue might arise or be resolved in the circumstance of criminal prosecution following an\nimpeachment trial\n\n110\n\n\x0cWhether a Former President May Be Indicted and Tried fo r the Same Offenses fo r Which He was\nImpeached by the House and Acquitted by the Senate\n\nother federal judges who were impeached and convicted during the 1980s fol\xc2\xad\nlowing criminal prosecution.\nI. The 1973 Justice Department Documents\nA. The United States\xe2\x80\x99s Brief in the Grand Jury Investigation of Vice President\nAgnew\nIn 1972, the United States Attorney for the District of Maryland empaneled\na grand jury to investigate criminal charges against Vice President Spiro Agnew.\nThe Vice President filed a motion with the district court supervising the grand\njury seeking to enjoin the grand jury from investigating or indicting him, claiming\nthat his office gave him immunity from indictment and criminal trial. The United\nStates filed a brief, signed by Solicitor General Robert Bork, opposing the Vice\nPresident\xe2\x80\x99s motion. The b riefs central contention was that \xe2\x80\x9c all civil officers of\nthe United States other than the President are amenable to the federal criminal\nprocess either before or after the conclusion of impeachment proceedings.\xe2\x80\x9d\nMemorandum for the United States Concerning the Vice President\xe2\x80\x99s Claim of\nConstitutional Immunity, In Re Proceedings of the Grand Jury Impaneled\nDecember 5, 1972: Application of Spiro T. Agnew, Vice President of the United\nStates, Civ. No. 73-965 (D. Md. filed Oct. 5, 1973) at 3 ( \xe2\x80\x9c Agnew B rie f\xe2\x80\x99).\nOne of the arguments the brief addresses is the contention that the Impeachment\nJudgment Clause, Article I, Section 3, Clause 7 of the Constitution dictates that\nimpeachment must precede indictment. That clause provides:\nJudgment in Cases of Impeachment shall not extend further than\nto removal from Office, and disqualification to hold and enjoy any\nOffice of honor, Trust, or Profit under the United States: but the\nParty convicted shall nevertheless be liable and subject to Indict\xc2\xad\nment, Trial, Judgment, and Punishment, according to Law.\nIn response to the argument that impeachment must precede prosecution, the brief\nfirst states, \xe2\x80\x9c As it applies to civil officers other than the President, the principal\noperative effect of Article I, Section 3, Clause 7, is solely the preclusion of pleas\nof double jeopardy in criminal prosecutions following convictions upon impeach\xc2\xad\nments.\xe2\x80\x9d Agnew Brief at 7. It goes on, however, to contend that the clause allows\ncriminal prosecution upon acquittal by the Senate as well. See id. at 8.\nIt then provides, though in very summary form, five arguments for that conclu\xc2\xad\nsion. First, impeachment and trial by the Senate, on the one hand, and prosecution\nin the courts, on the other, \xe2\x80\x9c serve different ends.\xe2\x80\x9d Id. Although the brief does\nnot actually spell out those different ends, they seem to be protection o f our\ninstitutions of government from corrupt or incompetent officials, on the one hand,\nand punishment of those individuals, on the other. The only illustration the brief\n111\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\noffers is that \xe2\x80\x9c a civil officer found not guilty by reason of insanity in a criminal\ntrial could certainly be impeached nonetheless.\xe2\x80\x9d Id. at 9. In a related vein, the\nbrief argues that trial on impeachment is a civil proceeding akin to deportation\nrather than a criminal proceeding. Id. at 10 n.**. Second, the brief points out\nthat impeachment trials \xe2\x80\x9c may sometimes be influenced by political passions and\ninterests that would be rigorously excluded from a criminal trial.\xe2\x80\x9d Id. at 9. Third,\nan acquittal by the Senate will often rest on a determination by at least a third\nof the Senate that the conduct alleged, though proven, does not amount to a high\ncrime or misdemeanor. Such a judgment in no way reflects a determination that\nthe conduct is not criminal in the ordinary sense. Id. Fourth, if the scope of the\nImpeachment Judgment Clause were restricted to convicted parties, \xe2\x80\x9c the failure\nof the House to vote an impeachment, or the failure of the impeachment in the\nSenate, would confer upon the civil officer accused complete and \xe2\x80\x94 were the\nstatute of limitations permitted to run \xe2\x80\x94 permanent immunity from criminal\nprosecution however plain his guilt.\xe2\x80\x9d Id. at 9 -1 0.2 Fifth, such a view would give\nCongress an indirect power of pardon \xe2\x80\x94 via impeachment and acquittal \xe2\x80\x94 even\nthough the Constitution vests the President alone with the power to pardon. Id.\nat 10.\nB. The 1973 OLC Memorandum\nIn 1973, this Office prepared a memorandum on the amenability of the Presi\xc2\xad\ndent, the Vice President, and other civil officers to federal criminal prosecution\nwhile in office. The memorandum\xe2\x80\x99s central conclusion was that all federal officers\nand the Vice President, but not the President, are amenable to federal prosecution\nwhile in office. The memorandum did not discuss at any length the question\nwhether a former President who has been acquitted by the Senate may be indicted\nand criminally tried. It did spend considerable time, however, refuting the notion\nthat the Impeachment Judgment Clause required officers to be impeached by the\nHouse and tried by the Senate before they may be criminally prosecuted. Instead,\nthe memorandum stated, \xe2\x80\x9c [t]he purpose of this clause . . . is to permit criminal\nprosecution in spite of the prior adjudication by the Senate, i.e., to forestall a\ndouble jeopardy argument.\xe2\x80\x9d Memorandum from Robert G. Dixon, Jr., Assistant\nAttorney General, Office of Legal Counsel, Re: Amenability of the President, Vice\nPresident and other Civil Officers to Federal Criminal Prosecution While in Office\n2The brief does not explain why the House\xe2\x80\x99s failure to impeach would, on any reading of the Impeachment\nJudgment Clause, act as a bar Even if one took the view that the Impeachment Judgment Clause\xe2\x80\x99s reference to\n\xe2\x80\x9c the party convicted\xe2\x80\x9d implied that acquitted parties could not be criminally prosecuted, that implication would natu\xc2\xad\nrally extend only to individuals who had been impeached by the House and acquitted by the Senate. (In regular\ncriminal proceedings, jeopardy does not attach until the jury has been swom, see, e .g , C n st v. Bretz, 437 U.S\n28, 35-38 (1978), or, in a bench trial, the first witness has taken the stand, see, e g , id at 37 n.15 A t the ume\nof the drafting o f the Constitution, the common la w rule was that jeopardy did not attach until the jury had rendered\na verdict. See, e.g., 2 W illiam Hawkins, A Treatise o f the Pleas o f the Crown 527 (6th ed 1787)) The brief appears\nto treat an impeachment investigation and a rejection of articles o f impeachment by the House as a type of acquittal\nWe are unaware o f any commentator or Member o f Congress who has adopted this position\n\n112\n\n\x0cWhether a Former President May Be Indicted and Tried fo r the Same Offenses fo r Which He was\nImpeached by the House and Acquitted by the Senate\n\nat 3 (Sept. 24, 1973) ( \xe2\x80\x9c 1973 OLC Memo\xe2\x80\x9d ). In support of that claim, the memo\xc2\xad\nrandum cited a passage from the argument made by Luther Martin in his role\nas defense counsel in the impeachment trial of Justice Chase in 1805 3 and quoted\na passage from Justice Joseph Story\xe2\x80\x99s 1833 Commentaries on the Constitution.4\nStory, the memorandum suggested, took the position that neither conviction nor\nacquittal by the Senate would bar a criminal prosecution. Id. at 2 n.2. The rea\xc2\xad\nsoning supporting our embrace of the position we attributed to Story was con\xc2\xad\ntained in a single sentence in a footnote: \xe2\x80\x9c The conclusion that acquittal by the\nSenate does not bar criminal prosecution follows from the consideration that such\nan acquittal may be based . . . on jurisdictional grounds, e.g., that the defendant\nis not an officer of the United States in the constitutional sense, or on discretionary\ngrounds, e.g., that the defendant no longer is an officer of the United States and\nunlikely to be reappointed or reelected, or on grounds which are partly jurisdic\xc2\xad\ntional and partly substantive, e.g., that the offense was not of an impeachable\nnature.\xe2\x80\x9d Id. The memorandum thus rested its conclusion on a somewhat elabo\xc2\xad\nrated version of the third argument made in the United States\xe2\x80\x99s brief in the Agnew\ncase.\nII. The Arguments Considered in Greater Depth\nThere appear to be two possible bases in the Constitution for the claim that\na former President who was acquitted by the Senate while he was in office may\nnot be criminally prosecuted for the same offenses: the Impeachment Judgment\nClause and the Double Jeopardy Clause. We will consider each in turn.\nA. The Impeachment Judgment Clause\n3The citation is 14 Annals of Congress 432 (1805). Martin had been a delegate from Maryland at the Constitutional\nConvention The memorandum cited a portion of M artin\xe2\x80\x99s speech at the Chase trial for the proposition lhat \xe2\x80\x9c Article\n1, section 3, clause 7 was designed to overcome a claim o f double jeopardy rather than to require that impeachment\nmust precede any criminal proceedings \xe2\x80\x9d 1973 OLC Memo at 3 In support of his larger argument that impeachable\noffenses were limited to indictable offenses, Martin imputed to the House managers the view that \xe2\x80\x9c a judge is only\nremovable from office on account of cnmes committed by him as a judge, and not for those for which he would\nbe punishable as a private individual \xe2\x80\x9d 14 Annals of Cong 431 (1805) If that were true, Martin argued, a judge\nmight be convicted and punished in the courts for burglary or receiving stolen goods and \xe2\x80\x9c yet he could not be\nremoved from office, because the offence was not committed by him in his judicial capacity, and because he could\nnot be punished twice for the same offence.\xe2\x80\x99\xe2\x80\x99 Id. That implication, Martin explained, must be wrong.\nThe truth is, the framers of the Constitution, for many reasons, which influenced them, did not think\nproper to place the officers o f the Government in the power o f the two branches of the Legislature, further\nthan the tenure of their office. Nor did they choose to permit the tenure of their offices to depend upon\npassions or prejudices o f jurors The very clause in the Constitution, of itself, shows that it was intended\nthe persons impeached and removed from office might still be indicted and punished for the same offence,\nelse the provision would have been not only nugatory, but a reflection on the enlightened body who framed\nthe Constitution; since no person ever could have dreamed that a conviction on impeachment and a removal\nfrom office, in consequence, for one offence, could prevent the same person from being indicted and pun\xc2\xad\nished for another and different offence.\nId. at 432.\n4 We discuss the Story passage infra pp. 126-27 & n 44.\n\n113\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\n1. The Argument That Senate Acquittal Bars Subsequent Prosecution\nThe Constitution itself expressly authorizes indictment and trial of officials who\nhave been impeached and convicted. As noted above, Article I, Section 3, Clause\n7 of the Constitution states:\nJudgment in Cases of Impeachment shall not extend further than\nto removal from Office, and disqualification to hold and enjoy any\nOffice of honor, Trust, or Profit under the United States: but the\nParty convicted shall nevertheless be liable and subject to Indict\xc2\xad\nment, Trial, Judgment, and Punishment, according to Law.\nThe clause is ambiguous when it comes to officials who have been impeached\nand not convicted. Some commentators have argued that the reference to \xe2\x80\x9c the\nParty convicted\xe2\x80\x9d implies that the exception to the double jeopardy principle cre\xc2\xad\nated by the clause does not extend to parties who are impeached but not con\xc2\xad\nvicted.5 Judge Alcee Hastings made the same argument in challenging the Senate\xe2\x80\x99s\njurisdiction to try him on impeachment after he had been tried and acquitted in\na federal criminal prosecution.6\nThis argument rests on the well-known canon of statutory construction,\nexpressio unius est exclusio alterius, \xe2\x80\x9c the expression of one is the exclusion of\nothers.\xe2\x80\x9d United States v. Wells Fargo Bank, 485 U.S. 351, 357 (1988). The\nImpeachment Judgment Clause says \xe2\x80\x9c the party convicted,\xe2\x80\x9d not \xe2\x80\x9c the party,\nwhether convicted or acquitted.\xe2\x80\x9d Its failure to mention parties acquitted by the\nSenate implies that they, unlike convicted parties, are not subject to regular\ncriminal prosecution.\nThis argument has some force. The Court has regularly relied on the expressio\nunius canon. See, e.g., Custis v. United States, 511 U.S. 485 , 491^492 (1994);\nLeatherman v. Tarrant County N arcotics Intelligence & Coordination Unit, 507\nU.S. 163, 168 (1993); National R.R. Passenger Corp. v. National A ss\xe2\x80\x99n o f R.R.\nPassengers, 414 U.S. 453, 457 (1974). Although the canon has most often been\napplied to statutes, rules, and contracts, the Court has used it as well in analyzing\nconstitutional provisions. See, e.g., U.S. Terms Limit, Inc. v. Thornton, 514 U.S.\n779, 793 n.9 (1995) (qualifications for Representatives specified in the Qualifica\xc2\xad\ntions Clause are exclusive). Indeed, one might argue that the canon has particular\nstrength when applied to constitutional provisions because, as the Court has noted,\nthose provisions are likely to be drawn with particular care. See, e.g., Township\n5 See Joseph Isenberg, Impeachment and Presidential Immunity from Judicial Process, 18 Yale L. & Pol\xe2\x80\x99y Rev\n53, 92-93 (1999), Jay S. Bybee, Who Executes the Executioner? Impeachment, Indictment and Other Alternatives\nto Assassination, 2 NEXUS 53, 5 8-59, 63 (1997).\n6 See Impeachment o f Judge Alcee L Hastings: Motions o f Judge Alcee L Hastings to Dismiss Articles I-X V\nand XV II o f the Articles o f Impeachment Against Him and Supporting and Opposing Memoranda, S Doc. No 101 \xe2\x80\x94\n4, at 4 8-57 (1989) (\xe2\x80\x9c Hastings Motions to Dismiss\xe2\x80\x9d )\n\n114\n\n\x0cWhether a Former President May Be Indicted and Tried fo r the Same Offenses fo r Which He was\nImpeached by the House and Acquitted by the Senate\n\no f Pine Grove v. Talcott, 86 U.S. (19 Wall.) 666, 674-75 (1873) (\xe2\x80\x9c [t]he case\n\nas to the [Michigan] constitution is a proper one for the application of the maxim,\n\xe2\x80\x98Expressio unius . . .\xe2\x80\x99. The instrument is drawn with ability, care, and fulness\nof details\xe2\x80\x9d ). In addition, if the Impeachment Judgment Clause is understood as\ncreating an exception to the general background rule of a prohibition on successive\nprosecutions, the expressio unius canon is particularly apt since it has often been\nwielded to support the conclusion that when a statute identifies specific exceptions\nto a general rule it by implication prohibits other exceptions. See, e.g.,\nLeatherman, 507 U.S. at 168; TVA v. Hill, 437 U.S. 153, 188 (1978); City o f\nWalla Walla v. Walla Walla Water Co., 172 U.S. 1, 22 (1898); Arthur v.\nCumming, 91 U.S. 362, 363 (1875); Sturges v. Collector, 79 U.S. (12 Wall.) 19,\n27 (1870).\nThe expressio unius argument gains plausibility from a comparison of the fed\xc2\xad\neral Impeachment Judgment Clause with the equivalent clauses in state constitu\xc2\xad\ntions. Of the forty-five state constitutions that authorize impeachment and limit\nthe punishment upon conviction, all forty-five provide for further prosecution in\nthe courts. In doing so, however, only fifteen follow the federal wording of \xe2\x80\x9c the\nparty convicted\xe2\x80\x9d 7; thirty, by contrast, expressly provide that the party impeached\nis liable to criminal proceedings regardless of the outcome of the legislative trial.8\n7See Conn Const, art 9, \xc2\xa7 3 ; Del Const, art 6, \xc2\xa72; Haw Const art. Ill, \xc2\xa7 19; Ky Const \xc2\xa768; Mass Const\nch. I, \xc2\xa72, art 8, Mich. Const, art. 11, \xc2\xa7 7 , para 4, Minn. Const, art. 8, \xc2\xa72, Miss Const. \xc2\xa751, N H. Const art.\n39, N.J Const, art. 7, \xc2\xa73, para 3, R1 Const art. XI, \xc2\xa7 3 , Tex. Const, art. 15, \xc2\xa74, Vt. Const. \xc2\xa758; Va. Const,\nart IV, \xc2\xa7 17; W Va. Const, art IV, \xc2\xa79\n8 See Ala. Const, art. 7, \xc2\xa7 176, Alaska Const, art. 2, \xc2\xa720, Anz. Const, art. 7, pt 2, \xc2\xa72 ; Ark Const art 15,\n\xc2\xa7 1 ; Cal. Const art IV, \xc2\xa718; Colo Const art. XIII, \xc2\xa7 2 , Fla. Const, art. HI, \xc2\xa717; Ga Cun^l art 3, \xc2\xa77, para\n3; Idaho Const art V, \xc2\xa73; 111 Const art. IV, \xc2\xa7 14, Iowa Const art. Ill, \xc2\xa720, La Const, art. X, \xc2\xa724, Me. Const,\nart HI, \xc2\xa77, Mo Const art. V ll, \xc2\xa7 3 ; Mont Const art V, \xc2\xa7 13, Nev Const art 7, \xc2\xa72, N M. Const, art IV, \xc2\xa736;\nN.Y. Const art. VI, \xc2\xa724, N C. Const, art. IV, \xc2\xa7 4 , N.D. Const, art XI, \xc2\xa7 10, Okl Const art. VIII, \xc2\xa75; Penn Const,\nart VI, \xc2\xa7 6 , S C Const art XV, \xc2\xa7 3 , S D Const, art. XVI, \xc2\xa73; Tenn Const, art. V, \xc2\xa74 , Utah Const art VI,\n\xc2\xa7 19; Wash Const art. V, \xc2\xa72; W.Va Const, art IV, \xc2\xa79; Wise. Const art VII, \xc2\xa7 1, Wyo. Const \xc2\xa7 18.\nWe have found references to the difference between the wording o f the federal clause and that of many of the\nstate constitutions in only two judicial decisions, one o f which relies upon the other State ex. rel. Christian v\nRudd, 302 So 2d 821, 825 (Fla Dist. Ct. App 1974), vacated in part on other grounds, Rudd v State ex. rel.\nChristian, 310 So.2d 295 (F la.1975), In re Investigation by Dauphin County Grand Jury, 2 A 2d 804, 808 (Pa\n1938) In the Pennsylvania case, a district attorney began a grand jury investigation of several state officials, the\nstate House of Representatives initiated an impeachment investigation of the same officials, and the House inves\xc2\xad\ntigating committee then sought a writ o f prohibition preventing the grand jury investigation from going forward.\nThe legislative committee argued, among other things, that the state constitution required impeachment to precede\ncriminal prosecution The court rejected that argument, stating\nThe delegation to the House o f Representatives o f the sole power o f impeachment did not have the effect\no f depriving the court of its power to continue the investigation in the existing proceeding of crimes consti\xc2\xad\ntuting misdemeanor in office. This is emphasized by the provision in section 3 of the sixth article, P S.\nConst art 6, \xc2\xa73, that \xe2\x80\x9c the person accused [in impeachment proceedings], whether convicted or acquitted,\nshall nevertheless be liable to indictment, trial, judgment and punishment according to law.\xe2\x80\x9d The two\nproceedings are independent o f each other and, as the Declaration of Rights shows, were intended to be\nkept independent proceedings. The provision that the accused shall be liable to indictment \xe2\x80\x9c w hether con\xc2\xad\nvicted or acquitted\xe2\x80\x9d does not require halting criminal proceedings until after the impeachment The provi\xc2\xad\nsion was probably inserted so that there might be no doubt that the result of a trial in either proceeding\nshould not be a bar to the trial in the other Petitioner refers to the corresponding provision of the federal\nconstitution and quotes from number LXV o f The Federalist, to support the argument that the impeachment\ntnal should precede the criminal proceeding. But the federal constitution, U S C .A . Const art 1, \xc2\xa73 , cl.\nContinued\n\n115\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nMoreover, express provisions concerning those acquitted in impeachment trials\nare not a recent innovation. The first state constitution to include a reference\nmaking clear that an impeachment acquittal created no bar to criminal prosecution\nwas the Pennsylvania charter of 1790.9 That State\xe2\x80\x99s constitution, like many others,\nsays that \xe2\x80\x9c the party, whether convicted or acquitted\xe2\x80\x9d is liable to prosecution in\nthe courts.10 Perhaps most telling is the New York constitution, the original 1777\nversion of which contained language strikingly similar to that later included in\nthe U.S. Constitution and which may well have been the source of the wording\nfor the federal clause.11 In the mid-nineteenth century, the New York charter was\namended to refer to \xe2\x80\x9c the party im peached\xe2\x80\x9d rather than \xe2\x80\x9c the party convicted\xe2\x80\x9d\nprecisely because of a concern that the latter phrase might be understood to give\nimmunity from criminal prosecution to those who had been impeached and\nacquitted.12\nFinally, the expressio unius argument rests on more than the wording of the\nImpeachment Judgment Clause. The framers might well have had a principled\n7 deals only with conviction, not with conviction or acquittal. \xe2\x80\x9c But the Party convicted shall nevertheless\nbe liable and subject to Indictment, Tnal, Judgment and Punishment, according to Law.\xe2\x80\x9d Our constitution\nsubjects the accused to prosecution regardless of w hether \xe2\x80\x9c convicted or acquitted\xe2\x80\x9d in the impeachment\ntrial, thereby indicating that, as the result o f the impeachment trial should be immaterial in its effect on\nthe criminal trial, there would be no reason for delaying the criminal proceeding.\nId at 808 The Florida case similarly involved a state official\xe2\x80\x99s claim that impeachment must precede indictment.\nSee State ex rel Christian v. R udd, 302 So.2d at 824-25\n9See 5 Francis Newton Thorpe, The Federal a n d State Constitutions 3097 (1909; reprint 1993) ( \xe2\x80\x9c Thorpe\xe2\x80\x9d ). The\nclause was added at the suggestion o f James W ilson, who had been a delegate to both the federal constitutional\nconvention and the Pennsylvania ratifying convention. Pennsylvania adopted its first state constitution in 1776. In\n1789, the state legislature called a convention to draft a new charter. See generally Joseph S. Foster, The Politics\no f Ideology: The Pennsylvania Constitutional Convention o f 1789-1790, 59 Penn Hist. 122 (1992). The convention\nmet for three months, offered its draft constitution for popular discussion, then met again to finalize the document.\nThe initial draft upon which the convention\xe2\x80\x99s first session based its discussions used the phrase \xe2\x80\x9c the party convicted\xe2\x80\x9d\nin its impeachment judgm ent clause See Minutes o f the Convention o f the Commonwealth o f Pennsylvania, Which\nCommenced at Philadelphia, on Tuesday the Twenty-fourth Day o f November, in the Year o f Our Lord One Thousand\nSeven H undred and Eighty-nine, fo r the Purpose o f Reviewing, and i f They See Occasion, Altering and Amending,\nthe Constitution o f this State 3 9-40 (1789). The convention approved that language and included it in the document\ncirculated for popular discussion See id. at 64, 96-97, 130. When the convenuon re-convened, Wilson moved\nsuccessfully to change the language to \xe2\x80\x9c the party, whether convicted or acquitted,\xe2\x80\x9d and that change survived a\nlater challenge by a very lopsided vote. See id at 155 (W ilson mouon and approval without division), 175 (rejection\nof motion to stnke the amended sentence rejected 51-7).\nl0See also A n z Const art 7, pt 2, \xc2\xa72, Cal. C onst art IV, \xc2\xa7 18 ( \xe2\x80\x9c but the person convicted or acquitted remains\nsubject to criminal punishment according to law\xe2\x80\x9d ), Colo. Const, art. XIII, \xc2\xa72; Fla. Const, art. Ill, \xc2\xa7 17 ( \xe2\x80\x9c conviction\nor acquittal shall not affect the civil o r criminal responsibility of the officer\xe2\x80\x9d ); III Const art. IV, \xc2\xa7 14; Iowa Const\nart III, \xc2\xa720; M e Const art. Ill, \xc2\xa7 7 ; Mont C onst art. V, \xc2\xa7 13, Nev Const art. 7, \xc2\xa72; N M Const art IV, \xc2\xa736;\nN.D. Const, art XI, \xc2\xa7 10; S D Const, art. XVI, \xc2\xa73; Utah Const, art. VI, \xc2\xa719; Wash. Const, art. V, \xc2\xa72; Wyo.\nConst \xc2\xa7 18\n11 See infra 121-22 & n.25.\n12 The change was made at the state constitutional convention o f 1846 The 1777 constitution had been replaced\nin 1821, but the phrase \xe2\x80\x9c the party convicted\xe2\x80\x9d was retained See 5 Thorpe, supra at 2647 The relevant portion\nof the draft constitution submitted to the 1846 convention also used \xe2\x80\x9c the party convicted \xe2\x80\x9d A delegate from Orange\nCounty, John W . Brown, moved the amendment changing the word \xe2\x80\x9c convicted\xe2\x80\x9d to \xe2\x80\x9c impeached.\xe2\x80\x9d Several delegates\nspoke in favor o f the proposed amendment. A M r. W orden observed that there \xe2\x80\x9c certainly was a difficulty, as a\nparty tried on articles o f impeachment and acquitt[ed], might throw himself on the great principle that a man shall\nnot tw ice be put in jeopardy for the same offence and he might plead his acquittal as a bar to an indictment in\na court o f law \xe2\x80\x9d S. Croswell & R. Sutton, Debates and Proceedings in the New-York State Convention, fo r the\nRevision o f the Constitution 434\xe2\x80\x94437 (1846); Journal o f the Convention o f the State o f New-York, Begun and Held\nat the Capitol in the City o f Albany, on the First D ay o f June, 1846, at 15, 734\xe2\x80\x9435 (1846)\n\n116\n\n\x0cWhether a Former President May Be Indicted and Tried fo r the Same Offenses fo r Which He was\nImpeached by the House and Acquitted by the Senate\n\nbasis for treating acquittals and convictions by the Senate distinctly. The American\nrule of double jeopardy derives from the common law pleas of auterfois acquit,\nformerly acquitted, and auterfois convict, formerly convicted.13 As Blackstone\nexplained, both pleas are grounded in the \xe2\x80\x9c universal maxim of the common law\nof England, that no man is to be brought into jeopardy of his life, more than\nonce, for the same offence,\xe2\x80\x9d 14 and the Double Jeopardy Clause, in giving that\nmaxim constitutional stature, embraces the protections both against re-prosecution\nfollowing acquittal and against re-prosecution following conviction.15 But, as the\nSupreme Court has explained, the rationales for the two components of the double\njeopardy rule are somewhat different. \xe2\x80\x9c The primary purpose of foreclosing a\nsecond prosecution after conviction . . . is to prevent a defendant from being\nsubjected to multiple punishments for the same offense.\xe2\x80\x9d Justices o f Boston Mun.\nCourt v. Lydon, 466 U.S. 294, 307 (1984). By contrast, the \xe2\x80\x9c primary goal of\nbarring reprosecution after acquittal is to prevent the State from mounting succes\xc2\xad\nsive prosecutions and thereby wearing down the defendant.\xe2\x80\x9d Id. \xe2\x80\x9c The underlying\nidea,\xe2\x80\x99 \xe2\x80\x99 the Court has repeatedly affirmed,\none that is deeply ingrained in at least the Anglo-American system\nof jurisprudence, is that the State with all its resources and power\nshould not be allowed to make repeated attempts to convict an indi\xc2\xad\nvidual for an alleged offense, thereby subjecting him to embarrass\xc2\xad\nment, expense and ordeal and compelling him to live in a con\xc2\xad\ntinuing state of anxiety and insecurity, as well as enhancing the\npossibility that even though innocent he may be found guilty.\nGreen v. United States, 355 U.S. 184, 187-88 (1957).\n\nThe central innovation of the Impeachment Judgment Clause, as explained more\nfully below, was the restriction on the types of sanctions the Senate could impose\nwhen it convicted someone upon impeachment. Breaking with English practice,\nin which the House of Lords could impose regular criminal punishments up to\ndeath, the framers provided that the Senate could do no more than remove an\noffender from office and disqualify him from future federal officeholding. The\nframers might reasonably have concluded that their innovative restriction of\n13 The best histories of the development o f ihe double jeopardy principle in English law are Martin Fnedland,\nDouble Jeopardy 5-15 (1969) and Jill Hunter, The Development o f the Rule Against Double Jeopardy, 5 J. Legal\nHist. 3 (1984); see also Jay A. Sigler, Double Jeopardy 1-37 (1969), Sigler, A History o f Double Jeopardy, 7\nAm. J. Legal Hist. 283 (1963), M anon Kirk, "Jeopardy" During the Period o f the Year Books, 82 U. Pa. L. Rev.\n602 (1934), George C. Thomas III, Double Jeopardy 7 1-86 (1998). For some of the Supreme C ourt\'s leading discus\xc2\xad\nsions of double jeopardy history, see United States v. Wilson, 420 U.S 332, 339-42 (1975); Benton v Maryland,\n395 U S 784, 7 95-96 (1969), Bartkus v. Illinois, 359 U.S. 121. 151-55 (1959) (Black, J., dissenting)\n144 William Blackstone, Commentaries on the Laws o f England 329 (1772, reprint 1967) ( \xe2\x80\x9c Blackstone\xe2\x80\x99s Com\xc2\xad\nmentaries\xe2\x80\x9d ), see also 2 Hawkins, supra chs 35-36, at 523-37, Thomas Wood, An Institute o f the Laws o f England\n664-65 (8th ed 1754), 2 Matthew Hale, The History o f the Pleas o f the Crown chs 31-32, at 240-55 (1st Am.\ned 1847)\n,5 \xe2\x80\x9c [N]or shall any person be subject for the same offence to be twice put in jeopardy o f life or lim b.\xe2\x80\x9d U.S.\nConst, amend V.\n\n117\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nimpeachment sanctions justified a relaxation of the normal ban on multiple punish\xc2\xad\nm ents\xe2\x80\x94 and thus a relaxation of the former jeopardy principle in the case of\nSenate convictions \xe2\x80\x94 in order to ensure that federal officials did not escape the\npunishments suffered by offenders against the criminal law who held no federal\noffice. No similar relaxation, they might have reasoned, was warranted in the case\nof successive trials following acquittals. The central rationales of the ban on\nsuccessive trials \xe2\x80\x94 the unfairness o f the government\xe2\x80\x99s repeatedly subjecting an\nindividual to the ordeal and expense of prosecution and the unfairness of giving\nthe government a chance to hone its case and thus to secure the conviction of\nan innocent party \xe2\x80\x94 arguably still applied. Thus the use of the phrase \xe2\x80\x9c the party\nconvicted\xe2\x80\x9d in a restrictive sense might well have had a perfectly reasonable basis\nin the underlying concerns of the double jeopardy rule.16\nMoreover, if the Impeachment Judgment Clause is seen not as addressing double\njeopardy concerns per se, but rather as providing protections for officers accused\nof wrongdoing, its silence about parties acquitted by the Senate makes sense and\nsuggests the framers thought acquittal by the Senate would bar criminal prosecu\xc2\xad\ntion. The Impeachment Judgment Clause provides protection most directly by\ndepriving the Senate of the ability to impose regular criminal punishments, but\nit also ensures that even those convicted by the Senate will get a regular trial,\nwith a jury and other guarantees, rather than having additional punishments\nimposed in some more summary proceeding. As Hamilton put it in Federalist\n<55, the guarantee of trial in the courts following trial in the Senate provides \xe2\x80\x9c the\ndouble security, intended them by a double trial.\xe2\x80\x9d 17 Once the defendant-protecting function of the Impeachment Judgment Clause is recognized, its silence\nabout acquitted parties is most reasonably understood as reflecting the assumption\nthat such parties, like those acquitted in the courts, would not be subject to further\nprosecution.\nEven apart from the special functions of the Impeachment Judgment Clause,\nthe framers might have considered protection of the finality of acquittals more\nfundamental than protection of the finality of convictions.18 The one state constitu\xc2\xad\ntion in the revolutionary period that contained a double jeopardy clause only\nbarred re-trials when there had been an acquittal,19 as did one of the two state\n16 One might perhaps find evidence of this distinction between finality of acquittals and the dangers o f successive\ntrials, on the one hand, and finality o f convictions and the dangers of multiple punishments, on the other, in the\nNew York ratifying convention\xe2\x80\x99s proposal for a federal double jeopardy clause: \xe2\x80\x9c That no Person ought to be put\ntwice in Jeopardy o f Life o r Lim b for one and the same Offence, nor, unless in case of impeachment, be punished\nmore than once for the same O ffence \xe2\x80\x9d 4 Bernard Schwartz, Roots o f the Bill o f Rights 912 (1971).\n17 The Federalist, supra at 442.\n18 Blackstone, for exam ple, stated that \xe2\x80\x9c it is contrary to the genius and spint of the law of England to suffer\nany man to be tried twice for the same offence in a criminal way, especially if acquitted upon the first trial.\xe2\x80\x9d\n4 Blackstone\xe2\x80\x99s Commentaries, supra at 256, see also Hunter, supra\n19 The New Hampshire Constitution of 1784, in one o f its few breaks with the Massachusetts Constitution of\n1780, included a double jeopardy clause. It provided. \xe2\x80\x9c No subject shall be liable to be tned, after an acquittal,\nfor the same crim e or offence.\xe2\x80\x9d 4 Thorpe, supra at 2455.\n\n118\n\n\x0cWhether a Former President May Be Indicted and Tried fo r the Same Offenses fo r Which He was\nImpeached by the House and Acquitted by the Senate\n\nproposals for a federal double jeopardy clause.20 In the case law that has grown\nup under the federal Double Jeopardy Clause, the Supreme Court has recognized\nthat \xe2\x80\x9c [a]n acquittal is accorded special weight.\xe2\x80\x9d United States v. DiFrancesco,\n449 U.S. 117, 129 (1980); see Tibbs v. Florida, 457 U.S. 31, 41 (1982) (\xe2\x80\x9c the\nDouble Jeopardy Clause attaches special weight to judgments of acquittal\xe2\x80\x9d ). The\nspecial place of acquittals helps explain several asymmetries in double jeopardy\nlaw, notably that the Constitution places no restrictions on defendants\xe2\x80\x99 ability to\nappeal convictions but prevents government appeals of acquittals that would lead\nto re-trial. See United States v. Wilson, 420 U.S. 332, 345, 352 (1975).\n2. The Impeachment Judgment Clause Permits Prosecution Following Acquittal:\nTextual and Historical Considerations\nDespite its initial plausibility, we find this interpretation of the Impeachment\nJudgment Clause ultimately unconvincing for several reasons.\na. Expressio Unius Is Only an Aid to Construction\nThe expressio unius canon is only an aid to interpretation, an aid that cannot\ntrump larger considerations of context and purpose. Although the Court has regu\xc2\xad\nlarly endorsed expressio unius arguments, it has also regularly rejected them. See,\ne.g., Freightliner Corp. v. Myrick, 514 U.S. 280, 288-89 (1995) (statutory preemp\xc2\xad\ntion); Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 703 (1991) (methods of\nrebuttal in regulations; citing Sunstein, 90 Columbia L. Rev. at 2190, n.182 for\nthe proposition that \xe2\x80\x9c the principle of expressio unius est exclusio alterius \xe2\x80\x98is a\nquestionable one in light of the dubious reliability of inferring specific intent from\nsilence\xe2\x80\x99 \xe2\x80\x9d ); Sullivan v. Hudson, 490 U.S. 877, 892 (1989); Herman & MacLean\nv. Huddleston, 459 U.S. 375, 387 n.23 (1983); Bingler v. Johnson, 394 U.S. 741,\n749-50 (1969). Again and again, the Court has cautioned that the maxim \xe2\x80\x9c is\nan aid to construction, not a rule of law,\xe2\x80\x9d Neuberger v. Commissioner, 311 U.S.\n83, 88 (1940), and that \xe2\x80\x9c [hjowever well these rules may serve at times to aid\nin deciphering legislative intent, they long have been subordinated to the doctrine\nthat courts construe the details of an act in conformity with its dominating general\npurpose [and] will read text in the light of context,\xe2\x80\x9d SEC v. C.M. Joiner Leasing\n\n20The Maryland ratifying convention suggested adding the following clause. \xe2\x80\x9c That there shall be a tnal by jury\nin all criminal cases, according to the course o f the proceedings in the state where the offence is committed, and\nthat there be no appeal from matter o f fact, or second tnal after acquittal, but this provision shall not extend to\nsuch cases as may arise in the government of the land or naval forces.\xe2\x80\x9d 2 Debates in the Several State Conventions\non the Adoption o f the Federal Constitution, as Recommended by the General Convention at Philadelphia, in 1787,\nat 550 (Jonathan Elliot, ed , 2d ed. 1836; repnnt 1941) ( \xe2\x80\x9c Elliot\xe2\x80\x99s D ebates\xe2\x80\x9d )\n\n119\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nCorp., 320 U.S. 344, 350-51 (1943); see Herman & MacLean, 459 U.S. at 387\n\nn.23.21\nb. Origins of the Impeachment Judgment Clause and Early Understandings\nWe are unaware of any evidence suggesting that the framers and ratifiers of\nthe Constitution chose the phrase \xe2\x80\x9c the party convicted\xe2\x80\x9d with a negative implica\xc2\xad\ntion in mind. In its most recent decision approving an expressio unius argument\nconcerning the meaning of a constitutional provision, the Court noted that it found\nthe argument compelling in significant part because such direct evidence of the\nframers\xe2\x80\x99 intent was available. See U.S. Terms Limit, Inc., 514 U.S. at 793 n.9.\nHere, by contrast, the record offers no similar signs of awareness that \xe2\x80\x9c the party\nconvicted\xe2\x80\x9d would be read to exclude acquitted parties from the effect of the\nImpeachment Judgment Clause\xe2\x80\x99s final sentence. Indeed, while a number of partici\xc2\xad\npants in the ratification debates and several early commentators simply repeated\nthe words o f the Impeachment Judgment Clause in describing it, at least two\ninfluential participants in the debate, one Member of Congress in the early\nrepublic, and at least one of our most distinguished early constitutional commenta\xc2\xad\ntors understood the clause to allow prosecution of parties who had been acquitted\nby the Senate as well as of those who had been convicted.\nIn 1787, impeachment already had a long history in Britain, but in Britain\nconviction on impeachment might result in a wide array of criminal penalties,\nincluding fines, imprisonment, and even execution.22 Restriction of the punish\xc2\xad\nments attendant on conviction by the legislature to removal and disqualification\nwas an American innovation developed over the course of the seventeenth and\neighteenth centuries.23 Five of the state constitutions from the revolutionary period\nexpressly addressed the types o f punishments that conviction on impeachment\ncould bring,24 and three of the five contained language that the drafters of the\nfederal clause may well have borrowed. New York\xe2\x80\x99s charter of 1777 created a\ncourt for the trial of impeachments consisting of the members of the senate, the\nchancellor, and the judges of the supreme court, and provided that \xe2\x80\x9c no judgment\n21 See also Ford v United States, 273 U.S. 593, 611 (1927) ( \xe2\x80\x9c This maxim properly applies only when in the\nnatural association o f ideas in the mind of the reader that which is expressed is so set over by way of strong\ncontrast to that which is omitted that the contrast enforces the affiim auve inference that that which is omitted must\nbe intended to have opposite and contrary treatm ent\xe2\x80\x9d )\n22See, e.g., 2 Joseph Story, Commentaries on the Constitution o f the United States 251-52 (1833, reprint 1994)\n( \xe2\x80\x98\xe2\x80\x98Story\xe2\x80\x99s Commentaries); 2 Richard Wooddeson, A Systematical View o f the Laws o f England 611-14 (1792), Raoul\nBerger, Impeachment- The Constitutional Problems 67 (1974)\n23 See Peter C. H offer & N E.H Hull, Impeachment in America 1635-1805, at xi, 97 (1984)\n24 V irginia\'s consutution o f 1776 provided that a convicted party \xe2\x80\x98\xe2\x80\x98shall be either forever disabled to hold any\noffice under government, or be removed from such office pro tempore, or subjected to such pains or penalties\nas the law s shall direct.\xe2\x80\x9d 7 Thorpe, supra at 3818 Delaware\xe2\x80\x99s 1776 constitution similarly provided that a convicted\nparty \xe2\x80\x98\xe2\x80\x98shall be either forever disabled to hold any office under government, or removed from office pro tempore,\nor subjected to such pains and penalues as the laws shall direct \xe2\x80\x9d It also stated that \xe2\x80\x9c all officers shall be removed\non conviction o f m isbehavior at common law, or on impeachment, or upon the address of the general assembly.\xe2\x80\x9d\nI id. at 566\n\n120\n\n\x0cWhether a Former President May Be Indicted and Tried fo r the Same Offenses fo r Which He was\nImpeached by the House and Acquitted by the Senate\n\nof the said court . . . shall . . . extend farther than to removal from office, and\ndisqualification to hold or enjoy any place of honor, trust, or profit under this\nState. But the party so convicted shall be, nevertheless, liable and subject to indict\xc2\xad\nment, trial, judgment, and punishment, according to the laws.\xe2\x80\x9d 25 The Massachu\xc2\xad\nsetts constitution of 1780 and the New Hampshire constitution of 1784 (largely\npatterned on its Massachusetts predecessor) made their senates the court for the\ntrial of impeachments and then stated that \xe2\x80\x9c [t]heir judgment, however, shall not\nextend further than to removal from office, and disqualification to hold or enjoy\nany place of honor, trust, or profit, under this Commonwealth: But the party so\nconvicted, shall be, nevertheless, liable to indictment, trial, judgment, and punish\xc2\xad\nment, according to the laws of the land.\xe2\x80\x9d 26\nAt the federal Constitutional Convention, most of the debate over impeachment\nconcerned three subjects: the wisdom of allowing impeachment of the President,\nthe tribunal in which impeachments should be tried, and the nature of the offenses\nthat should impeachable.27 The limitation on the types of punishments available\non conviction and the provision for criminal prosecution despite conviction on\nimpeachment were proposed by the Committee of Detail, to which the Convention\n^ 5 Thorpe, supra at 2635 The phrase \xe2\x80\x9c the party convicted\xe2\x80\x9d was apparently in the draft constitution that formed\nthe starting point for debate at the New York convention o f 1776-1777. A committee composed of John Jay,\nGouvemeur M om s, Robert R. Livingston, W illiam Duer, John Sloss Hobart, Abraham Yates, J r, Robert Yales,\nHenry Wisner, William Smith, John Broome, Samuel Townsend, Charles DeWm, and John Morin Scott prepared\nthat draft over the course of several tumultuous months, with the first three named taking the lead roles See Bernard\nMason, The Road to Independence: The Revolutionary Movement in New York 1773-1777, at 213-49 (1966); 1\nCharles Z Lincoln, The Constitutional History o f New York 484-539 (1906). The draft apparently originally provided\nthat \xe2\x80\x9c no Judgment or Sentence o f the said Court . . shall extend farther than to removal from office and Disquali\xc2\xad\nfication to hold or enjoy any place o f Honour, Trust, or Profit under this State But the pnriy convicted shall neverthe\xc2\xad\nless be afterwaid* subject to a farther trial in the Supreme Court by a jury o f the Country and to such additional\nPunishment according to the nature o f the Offense and the law of the land as the Judgment o f the said court shall\nbe inflicted.\xe2\x80\x9d Lincoln, supra al 539 On a motion seconded by Jay and Scott, the convention changed the last\nsentence to its final form See 1 Journals o f the Provincial Congress. Provincial Convention, and Committee o f\nSafety and Council o f the State o f New-York 1775-1776-1777, at 878 (1842)\n26 3 Thorpe, supra at 1897 (Massachusetts), 4 id. at 2461 (New Hampshire). The somewhat sketchy records of\nthe Massachusetts convention show that this language was included in the draft constitution that provided the starting\npoint for discussion at the convention (and that it had also appeared in the rejected draft consutution o f 1778).\nSee Journal o f the Convention fo r Framing a Constitution o f Government fo r the State o f Massachusetts Bay. From\nthe Commencement o f Their First Session, September I, 1779. to the Close o f Their Last Session, June 16. 1780,\nat 201, 262 (1832) It apparently provoked little or no discussion When the 1778 draft constitution had been cir\xc2\xad\nculated, at least one town included an objection to that document\xe2\x80\x99s impeachment judgment clause among its list\nof criticisms The town o f Sutton attacked the failure to define impeachable offenses clearly, and noted that \xe2\x80\x9c [i]f\nhe has broken any Law, why is not to be tryed by a jury as expressed in Article XXXII, but if he has broken\nany Law he is to be indited tried and punished beside1 so that a Man is to have two trials and two punishments\nfor one crime; the one without Law and another according to Law; shocking to humane Nature* we never know\nwhen we are safe, when we are transgressors, or when we have done receiving punishments for a fault or pretended\none1\xe2\x80\x9d The Popular Sources o f Political Authority 236 (Oscar & Mary Handlin, eds., 1966) ( \xe2\x80\x9c Handlin & H andlin\xe2\x80\x9d ).\n27 See 2 The Records o f the Federal Convention o f 1787, at 39, 53\xe2\x80\x9454, 64\xe2\x80\x9469, 493, 522-23, 545, 550-52 (Max\nFarrand, ed , rev. ed. 1966) ( \xe2\x80\x9c Farrand\xe2\x80\x9d ). In the debate over making the President subject to impeachment, Benjamin\nFranklin, for example, argued in favor of retaining the impeachment mechanism, noting that, in the absence of\na peaceful method for removing the head of state, assassination had often been the only method for achieving the\nsame end. \xe2\x80\x9c It would be the best way therefore,\xe2\x80\x9d he argued, \xe2\x80\x9c to provide in the Constitution for the regular punishment\nof the Executive when his misconduct should deserve it and for his honorable acquittal when he should be unjustly\naccused \xe2\x80\x9d Id. at 65, see also id at 68 ( \xe2\x80\x9c Had [the Prince of Orange] been impeachable, a regular and peaceable\ninquiry would have taken place and he would if guilty have been duly punished, if innocent restored to the confidence\nof the public\xe2\x80\x9d )\n\n121\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\non July 23 gave the assignment o f crafting a draft constitution based on the\nconvention\xe2\x80\x99s deliberations so far. That committee made its report on August 6.28\nTheir report made the Supreme Court the tribunal for trying impeachments, and\nthe Impeachment Judgment Clause appeared in the final section of the their pro\xc2\xad\nposed judiciary article.29 The convention approved it, apparently without divi\xc2\xad\nsion.30 The Impeachment Judgment Clause remained unchanged throughout the\ndebate over the proper tribunal for trying impeachments and the eventual giving\nof that responsibility to the Senate.31 When the Committee of Style and Arrange\xc2\xad\nment near the end of the convention reported the clause in its present terms,32\nit occasioned no debate except a proposal, rejected by the convention, to add a\nprovision that a party impeached be suspended from office until tried and\nacquitted.33\nTo sum up, then, the Impeachment Judgment Clause was written as part of\na draft constitution that made the Supreme Court, not the Senate, the tribunal\nfor trying impeachments. The records of the Convention do not show any discus\xc2\xad\nsion of whether the change in the impeachment court had any effect on the\nmeaning of the clause. More broadly, the records do not reflect any substantive\ndiscussion of the clause\xe2\x80\x99s meaning.\nAs in the Convention, so during the ratification debates most of the discussion\nof impeachment concerned the proper tribunal for trying impeachments and the\nrange of impeachable offenses. Critics of the Constitution questioned the Senate\xe2\x80\x99s\nrole as the court for impeachments, and several state ratifying conventions pro\xc2\xad\nposed alternative bodies, at least for the trial of Senators.34 References to the\nImpeachment Judgment Clause were rare.\nSome commentators, in describing the Clause, simply repeated its own terms\nor mentioned only the particular circumstance it explicitly sanctioned: liability\n28 On the appointment o f the committee, see 2 id at 85, 9 5-96, 97, 106 The members were John Rutledge of\nSouth Carolina, Edmund Randolph o f Virginia, Nathaniel Gorham o f Massachusetts, Oliver Ellsworth of Connecticut,\nand James W ilson o f Pennsylvania. For their report, see id. at 185-89\n29 See 2 id. at 187.\ni0 See 2 id. at 438 & nn 12-13 As Farrand explains, there is a discrepancy on this score between the convention\xe2\x80\x99s\nprinted journal and M adison\xe2\x80\x99s notes. C f 2 Story\xe2\x80\x99s Commentaries, supra \xc2\xa7 786, at 254-55.\n31 See 2 Farrand, supra at 334, 337, 367, 422, 423, 427, 431, 438, 444, 473, 493, 495, 500, 522-24, 530, 545,\n5 5 1 ,5 5 4 ,5 8 7 ,5 9 2 ,6 1 2 -1 3\n32 See 2 id at 585, 592.\n31 See 2 id. at 612-13.\n34 The defendant in the first federal impeachment, W illiam Blount, was a Senator (or former Senator) The House\nadopted a resolution o f impeachment, the Senate expelled Blount the next day, and several months later the House\nadopted articles o f impeachment See 3 Asher C Hinds, H inds\xe2\x80\x99 Precedents o f the House o f Representatives 64650 (1907) ( \xe2\x80\x9c H inds\' Precedents\xe2\x80\x9d )) Blount challenged the Senate\xe2\x80\x99s jurisdiction on several grounds, one of which\nwas that Senators are not \xe2\x80\x9c civil Officers\xe2\x80\x99\xe2\x80\x99 and thus not subject to impeachment See U S. Const, art II, \xc2\xa7 4 The\nS enate\xe2\x80\x99s decision that it lacked jurisdiction has generally been taken as establishing that Senators are not liable\nto impeachment. See generally Buckner F. M elton, J r , The First Impeachment. The Constitution\xe2\x80\x99s Framers and\nthe Case o f Senator William Blount (1998) A t the time of the ratification debates, though, many participants thought\nSenators (like members o f the House of Lords in England) would be subject to impeachment. See, e.g., 2 The\nD ocumentary History o f the Ratification o f the Constitution 492 (M errill Jensen et a l , eds. 1976-) (\xe2\x80\x9c DHRC\xe2\x80\x9d ) (state\xc2\xad\nment o f James W ilson in the Pennsylvania ratifying convention); 4 Elliot\xe2\x80\x99s Debates, supra at 33 (statement of Mr\nTaylor in the North Carolina ratifying convention); see also Jackson Turner Main, The Anti-Federalists 139 & n.73\n(1961) (collecting additional remarks in ratification debates assuming that Senators would be subject to impeachment).\n\n122\n\n\x0cWhether a Former President May Be Indicted and Tried fo r the Same Offenses fo r Which He was\nImpeached by the House and Acquitted by the Senate\n\nto prosecution following conviction by the Senate. Hamilton devoted Federalist\nNo. 65, for example, to a defense of the selection of the Senate as the tribunal\nfor trying impeachments. One of his claims for the Senate\xe2\x80\x99s superiority over the\nSupreme Court was that, if impeachments were tried before the Supreme Court,\nthe same body would improperly have final review over each of the two trials\nto which an impeached official might be subjected. For \xe2\x80\x9c [t]he punishment, which\nmay be the consequence of conviction upon impeachment,\xe2\x80\x9d he noted, \xe2\x80\x9c is not\nto terminate the chastisement of the offender. After having been sentenced to a\nperpetual ostracism from the esteem and confidence, and honors and emoluments\nof his country; he will still be liable to prosecution and punishment in the ordinary\ncourse of law.\xe2\x80\x9d 35 Others invoked the Clause in order to defend the Senate\xe2\x80\x99s\njudicial role by stressing the limited nature of its judgments. Tench Coxe, a\nleading advocate of the Constitution in Pennsylvania, in an essay assessing the\nroles assigned to the newly designed Congress, parried the contention that the\nSenate had unwisely been given judicial functions, by pointing out that the Senate\n\xe2\x80\x9c can only, by conviction on impeachment, remove and incapacitate a dangerous\nofficer, but the punishment of him as a criminal remains within the province o f\nthe courts o f law to be conducted under all the ordinary form s and precautions,\n\nwhich exceedingly diminishes the importance of their judicial powers.\xe2\x80\x9d 36 Still\nother commentators held up the Impeachment Judgment Clause as evidence that\nthe newly created federal executive would not be able to abuse his power without\nfacing severe punishment. A Virginia supporter of the Constitution argued that\nshould the President \xe2\x80\x9c at any time be impelled by ambition or blinded by passion,\nand boldly attempt to pass the bounds prescribed to his power, he is liable to\nbe impeached and removed from office; and afterwards he is subject to indictment,\ntrial, judgment, and punishment according to law.\xe2\x80\x9d 37\n35The Federalist No 65, at 442 (Jacob E Cooke, ed , 1961); see also The Federalist No 69, at 463 (Alexander\nHamilton) ( \xe2\x80\x9c The President o f the United States would be liable to be impeached, tned, and upon conviction of\ntreason, bribery, or other high crimes or misdemeanors, removed from office, and would afterwards be liable to\nprosecution and punishment in the ordinary course of the law\xe2\x80\x9d ), The Federalist No. 77, at 520 (Alexander Hamilton)\n(the President is \xe2\x80\x9c at all times liable to impeachment, tnal, dismission from office, incapacity to serve in any other,\nand to the forfeiture of life and estate by subsequent prosecution in the common course of law\xe2\x80\x9d ).\n36 An American Citizen II. 2 DHRC, supra at 143; see also A Democratic Federalist, id at 297 (The Senate\n\xe2\x80\x9c can take no cognizance o f a private citizen and can only declare a dangerous public officer no longer worthy\nto serve his country. To punish him for his crimes, in body or estate, is not within their constitutional powers.\nThey must consign him to a jury and a court, with whom the deprivation of his office is to be no proof o f guilt\xe2\x80\x9d );\nAn American Citizen IV, 13 DHRC, supra at 434, A Patriotic Citizen, 18 DHRC, supra at 10 (\xe2\x80\x9c the people . .\nare not only vested with the power o f election o f impeachment, and dismission from office for misdemeanors, and\nof further punishing the culprits by the violated laws o f their country\xe2\x80\x9d )\n37Americanus /, 8 DHRC, supra at 203 William Symmes, a delegate to the Massachusetts Ratifying Convention,\nnoted the same checks in a letter to a friend but questioned whether they would be effective1 \xe2\x80\x9c If [the President]\nmake a bad treaty, what then7 Why he may be impeached, if anybody dares impeach him before ye very Senate\nthat advised ye measure And if convicted, what? He shall be removed from his office, & perhaps disqualified\nto hold any other And after this he may chance to lose his head by a trial at Law, if ye Judges, whom he has\nappointed, will bid ye Jury to convict him .\xe2\x80\x9d Letter from William Symmes, Jr., to Peter Osgood, Jr., 14 DHRC,\nsupra at 113-14, see also James Iredell in the first North Carolina Ratifying Convention, 4 Elliot\xe2\x80\x99s Debates, supra\nat 114 ( \xe2\x80\x9c The punishment annexed to this conviction on impeachment can only be removal from office, and disquali\xc2\xad\nfication to hold any place o f honor, mist, or profit But the person convicted is further liable to trial at common\nContinued\n\n123\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nThese remarks on the Impeachment Judgment Clause reflect the two concerns\nmotivating it. Because impeachment was designed to serve above all as a legisla\xc2\xad\ntive check on executive power,38 the Impeachment Judgment Clause was intended\nto make sure both that the special legislative court for the largely political offenses\njustifying impeachment would be able to impose only political, not ordinary\ncriminal, punishments and that offenders who also violated regular criminal laws\nwould not stand above the law because they had been officeholders when they\ncommitted their misdeeds. Presumably, these commentators did not address the\nconsequences of acquittal by the Senate because that was not a subject the\nImpeachment Judgment Clause addressed. Indeed, if the Impeachment Judgment\nClause were intended to imply that acquittal by the Senate would block criminal\nprosecution for the same offenses, one would expect that at least one participant\nin the process of framing and ratifying the Constitution would have pointed out\nthis negative implication. We are aware of none.\nTwo well-informed participants did, however, understand the Impeachment\nJudgment Clause to imply that an acquittal, like a conviction, would not bar\ncriminal prosecution for the same offences. James Wilson, a leading figure at the\nConstitutional Convention (and member of the Committee of Detail, which drafted\nthe Impeachment Judgment Clause), and at the Pennsylvania ratifying convention,\nand later an Associate Justice o f the Supreme Court, revealed such an under\xc2\xad\nstanding in remarks during the Pennsylvania ratifying convention. Assuming, as\nmany did during the ratification debates, that Senators as well as executive and\njudicial officers would be liable to impeachment, Wilson responded to the charge\nthat the Senate could not serve as an effective impeachment court for its own\nmembers. Noting that one third o f the Senate faced re-election every two years,\nWilson suggested that voters would throw out those who behaved improperly and\nthat enough new Senators would regularly be added so that personal connections\nor collective involvement in the impeachable acts would not prevent fair trials.\nMoreover, he argued, \xe2\x80\x98 \xe2\x80\x98Though they may not be convicted on impeachment before\nthe Senate, they may be tried by their country; and if their criminality is estab\xc2\xad\nlished, the law will punish.\xe2\x80\x9d 39 Edmund Pendleton, the President of the Virginia\nSupreme Court and of the Virginia Ratifying Convention, apparently interpreted\nthe Impeachment Judgment Clause in this way as well. Shortly after the comple\xc2\xad\nlaw, and may receive such common-law punishment as belongs to a description of such offences, if it be punishable\nby that law \xe2\x80\x9d ); 4 id. at 45 (Mr. MacLaine, repeating Impeachment Judgment Clause verbatim and observing: \xe2\x80\x9c Thus\nyou find that no offender can escape the danger o f punishment\xe2\x80\x9d ).\n38 Judges were made subject to impeachment near the end o f the Constitutional Convention, after nearly all of\nthe substantive discussion of the impeachment power had taken place See 2 Farrand, supra at 545, 552 That discus\xc2\xad\nsion focused on relations between the legislature and the executive\n39 2 DHRC, supra at 492. W ilson was also the one who, three years later, proposed the change from \xe2\x80\x9c the party\nconvicted\xe2\x80\x9d to " th e party, whether convicted o r acquitted\xe2\x80\x9d in the Pennsylvania constitution of 1790 See supra n.9\nIt is unclear what conclusion, if any, to draw from W ilson\xe2\x80\x99s role in re-wording the impeachment judgm ent clause\nin the Pennsylvania constitution \xe2\x80\x94 whether it suggests that he thought his initial reading of the federal impeachment\njudgm ent clause was erroneous o r whether he was instead seeking to clarify something that he thought was implicit\nin the wording o f the federal clause\n\n124\n\n\x0cWhether a Former President May Be Indicted and Tried fo r the Same Offenses fo r Which He was\nImpeached by the House and Acquitted by the Senate\n\ntion of the Constitutional Convention, Madison sent Pendleton a copy of the Con\xc2\xad\nstitution for his consideration. In his generally favorable response, Pendleton con\xc2\xad\nfessed his leeriness of impeachments because of their susceptibility to partisan\nmisuse, but noted that the impeachment power \xe2\x80\x9c is in the hands of the House\nof Representatives, who will not use it in the case Supposed, or if they do, and\nmeet the obstruction, may yet resort to the courts of Justice, as an Acquital would\nnot bar that remedy. \xe2\x80\x99\xe2\x80\x99 40\nAt least some participants in the first federal impeachment trial, that of Senator\nWilliam Blount of Tennessee in 1798, shared Wilson\xe2\x80\x99s and Pendleton\xe2\x80\x99s under\xc2\xad\nstanding of the Impeachment Judgment Clause. In a debate over whether an\nimpeachment trial was a criminal proceeding and thus whether the House should\ninstruct the managers to request that the Senate compel the defendant\xe2\x80\x99s appear\xc2\xad\nance, Samuel Dana, a Representative from Connecticut, observed that \xe2\x80\x9c [w]ere\nthe offence to be considered as a crime, merely, the judgment of the court should\ninvolve the whole punishment; whereas, it has no connexion with punishment or\ncrime, as, whether a person tried under an impeachment be found guilty or\nacquitted, he is still liable to a prosecution at common law.\xe2\x80\x9d 41\nTwo of our earliest and most eminent commentators on the Constitution also\naddressed the implications of the Impeachment Judgment Clause for Senate acquit\xc2\xad\ntals. St. George Tucker, a distinguished jurist and editor of an edition of Black\xc2\xad\nstone\xe2\x80\x99s Commentaries that gained widespread use in the early nineteenth-century\nUnited States, included the first extended commentary on the new federal constitu\xc2\xad\ntion since the ratification debates as an appendix to his edition of Blackstone.\nIn a section questioning the wisdom of making the Senate the tribunal for trying\nimpeachments, Tucker acknowledged that \xe2\x80\x9c a person convicted upon an impeach\xc2\xad\nment, shall nevertheless be liable and subject to indictment, trial, judgment, and\npunishment, according to law.\xe2\x80\x9d In a footnote he then added: \xe2\x80\x9c And as a conviction\nupon an impeachment, is no bar to a prosecution upon an indictment, so perhaps,\nan acquittal may not be a bar.\xe2\x80\x9d 42 If Tucker thought the implication o f the\nImpeachment Judgment Clause that Senate acquittals would be no bar to criminal\nprosecution was only possible, Justice Story seemed to take the point for granted\nin his 1833 Commentaries on the Constitution. Story observed that if the Senate\nhad been given the authority to mete out regular criminal punishments, \xe2\x80\x9c then,\nin case o f an acquittal, there cannot be another trial of the party for the same\noffence in the common tribunals of justice\xe2\x80\x9d because the common law double jeop\xc2\xad\n40 Letter from Edmund Pendleton to James Madison, Oct 8, 1787, 10 DHRC, supra at 1773 (emphasis added).\nOn Oct. 28, Madison responded to Pendleton\xe2\x80\x99s long letter with a short one, stating, \xe2\x80\x9c The remarks which you make\non the Act of the Convention appear to me to be in general extremely well founded \xe2\x80\x9d 10 The Papers o f James\nMadison 223 (1977). Madison then mentioned two particular points: the prohibition in Article I, Secuon 9, Clause\n6 on states establishing customs duties, and the prohibition in article 6 on religious tests for federal office. The\nrest of the letter was about the prospects for ratification in the various states. See id. at 223-24 Pendleton\xe2\x80\x99s response\nto M adison\xe2\x80\x99s Oct. 28 letter has apparently been lost See id. at 444\n41 9 Annals of Congress 2475 (1798).\n42 1 St. George Tucker, Blackstone\'s Commentaries 337 & n.* (Philadelphia, William Y. Birch et al. 1803, reprint\n1996) (\xe2\x80\x9c Tucker\xe2\x80\x99s Blackstone\xe2\x80\x9d )\n\n125\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nardy principle would forbid it.43 Without the Impeachment Judgment Clause, Story\ncontended, \xe2\x80\x98 \xe2\x80\x98it might be a matter o f extreme doubt\xe2\x80\x99\xe2\x80\x99 whether, in light of the double\njeopardy rule, \xe2\x80\x9c a second trial for the same offence could be had, either after\nan acquittal , or a conviction in the court of impeachments.\xe2\x80\x9d 44 In Story\xe2\x80\x99s view,\nthe Impeachment Judgment Clause removed any doubt about a double jeopardy\nbar in the case of Senate acquittals no less than in the case of Senate convictions.\nc. Reading the Impeachment Judgment Clause as a Whole\nThat two participants in the ratification process and a number of other early\nreaders o f the Constitution did not understand \xe2\x80\x98\xe2\x80\x98the party convicted\xe2\x80\x99\xe2\x80\x99 as containing\na negative implication concerning parties acquitted by the Senate fits our under\xc2\xad\nstanding of the role of the Impeachment Judgment Clause as a whole. The clause\nas a whole serves to make clear how the methods for punishing misconduct by\nhigh officials in the new American national government would differ from those\nin the English system. Indeed, the clause might well be called the Impeachment\nConviction or Impeachment Punishments Clause.45 Again, in England, the House\nof Lords could not only remove officials from office and disqualify them from\nholding office, but also impose a full range of criminal punishments on impeach\xc2\xad\nment defendants, including, for example, banishment, forfeiture of estate, impris\xc2\xad\nonment, and death. In the new American national government, the first sentence\nof the Impeachment Judgment Clause establishes that the Senate would be limited\nto the first two sanctions: removal and disqualification. That restriction would\nraise the question whether the other punishments the founding generation was\naccustomed to seeing imposed by the House of Lords could be imposed at all\nunder the new American government. If the Senate could not impose such sanc\xc2\xad\ntions, perhaps nobody could. In support of that view, the phrase \xe2\x80\x9c Judgment in\ncases of impeachment\xe2\x80\x9d might have been read to mean the entire group of sanc\xc2\xad\ntions imposed by any tribunal considering a case arising from facts that led to\nan impeachment.46 The Impeachment Judgment Clause\xe2\x80\x99s second part makes clear\nthat the restriction on sanctions in the first part was not a prohibition on further\npunishments; rather, those punishments would still be available but simply not\n43 2 Story\xe2\x80\x99s Commentaries, supra at 250 (emphasis added)\n44 Id at 251 (emphasis added) Story\xe2\x80\x99s reasoning does not seem to us to be entirely clear He does not directly\naddress the significance o f the phrase \xe2\x80\x9c the party convicted.\xe2\x80\x99\xe2\x80\x99 A lthough much o f his discussion of the function of\nthe final sentence o f the Impeachment Judgment Clause is focused on, if not limited to, parties convicted by the\nSenate, his ultim ate description o f that sentence seems clearly to assume that it creates no bar to prosecution following\nacquittal by the Senate\n45 In using the term \xe2\x80\x9c Impeachment Judgment Clause,\xe2\x80\x9d we follow Laurence Tribe See I Laurence Tribe, American\nC onstitutional Law 159 n.32 (3d ed 2000)\n46W hile such a broad reading o f \xe2\x80\x9c Judgment in cases of impeachment\xe2\x80\x9d seems in tension with the apparently\nnarrow er meaning of the phrase \xe2\x80\x9c cases of impeachment\xe2\x80\x9d in the jury tnal guarantee, see U S Const, art. Ill, \xc2\xa72,\ncl 3, M adison used the same phrase in his proposal for the D ouble Jeopardy Clause in a way that comports with\nthe broader meaning \xe2\x80\x9c No person shall be subject, except in cases o f impeachment, to more than one punishment,\nor one trial for the same offence.\xe2\x80\x9d Creating the Bill o f Rights The Documentary Record from the First Federal\nCongress 12 (Helen E Veit, Kenneth R. Bowling & Charlene Bangs Bickford, eds., 1991) ( \xe2\x80\x9c Veit\xe2\x80\x9d ).\n\n126\n\n\x0cWhether a Former President May Be Indicted and Tried fo r the Same Offenses fo r Which He was\nimpeached by the House and Acquitted by the Senate\n\nto the legislature. The courts would be the bodies entrusted with imposing those\npunishments even on high officials. The clause\xe2\x80\x99s final sentence ensured that high\nofficials would be fully punished for their misdeeds. Thus, because the clause\naddressed a problem concerning the nature of punishments and the institutions\nentrusted with imposing them \xe2\x80\x94 a problem created by the American break from\nlongstanding English practice \xe2\x80\x94 it simply had no need to address the effect of\nacquittal by the Senate.\nd. Impeachment and Jeopardy: Early Understandings\nWe recognize that the final sentence of the Impeachment Judgment Clause\nmight be read instead as a partial response to a perceived double jeopardy problem\nraised by that very American innovation. Indeed, the expressio unius argument\nsketched earlier in this memorandum rests on the assumption that the founders\nunderstood an impeachment trial as an instance of jeopardy within the meaning\nof the double jeopardy rule and consciously chose to override that rule in the\ncase of Senate convictions but not acquittals. We find that assumption hard to\nsquare with the little evidence we have concerning the framers\xe2\x80\x99 and ratifiers\xe2\x80\x99\nunderstanding of the possible applicability of the double jeopardy rule to the novel\nimpeachment proceeding created by the Constitution in which the only sanctions\nupon conviction were removal and disqualification.\nThe principle of double jeopardy, though not called by that name, was well\nknown at the time of the founding. And some participants in the process of\ndrafting and ratifying the Constitution may well have thought that the restriction\nof impeachment sanctions to removal and disqualification did not remove\nimpeachment trials from the principle\xe2\x80\x99s operation. The citizens of Sutton,\nMassachusetts, for example, responding in 1778 to a draft state constitution that\nincluded an impeachment judgment clause very similar to what was later included\nin the federal constitution, expressed their conviction that a provision for \xe2\x80\x9c two\ntrials and two punishments for one crime\xe2\x80\x9d was \xe2\x80\x9c shocking to humane Nature!\xe2\x80\x9d 47\nWe think it unlikely, though, that most of the framers or ratifiers had such\na clear view that the double jeopardy rule applied to the new species of impeach\xc2\xad\nment trial they had created. Indeed, the formulations of the rule in the sources\nupon which the framers and ratifiers most heavily relied restricted its reach to\ncases where the defendant\xe2\x80\x99s life was at stake. Blackstone, for example, stated\nthe governing maxim as \xe2\x80\x9c no man is to be brought into jeopardy of his life, more\nthan once, for the same offence.\xe2\x80\x9d 48 Other leading writers on criminal law\n47 Handlin & Handlin, supra at 236. See supra n 26\n484 Blackstone\xe2\x80\x99s Commentaries, supra at 329\n\n127\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nexpressed the principle in similar terms.49 When, just two years after the drafting\nof the Constitution, the First Congress proposed a double jeopardy clause as part\nof the Bill of Rights amendments, it too restricted the principle\xe2\x80\x99s reach, using\nthe phrase \xe2\x80\x9c life or limb.\xe2\x80\x9d Even if \xe2\x80\x9c life\xe2\x80\x9d and \xe2\x80\x9c life or limb\xe2\x80\x9d in this context were\nunderstood to encompass all felonies,50 and thus some statutory offenses for which\nthe penalties were significant terms of imprisonment, those expressions still lim\xc2\xad\nited the reach of the double jeopardy principle to cases where at least the defend\xc2\xad\nant\xe2\x80\x99s liberty was at stake.51 On that understanding, a proceeding in which convic\xc2\xad\ntion could bring no more than removal and disqualification simply did not amount\nto an instance of jeopardy.\nA number of comments by participants in the framing and ratification of the\nConstitution support this view of the relationship between the double jeopardy\nrule and the new American impeachment process. Those comments interpret the\nrestriction of impeachment sanctions to removal and disqualification as a decisive\nbreak with the English practice of criminal punishments in impeachments and thus\nview those limited sanctions as distinct from the normal criminal punishments\nthat were necessary to place someone in jeopardy.\nAt the Constitutional Convention, Gouvemeur Morris explained his shift from\nopposition to, to support of, Presidential impeachment in part based on the limited\nnature of the punishments the court of impeachment should be empowered to\nimpose. \xe2\x80\x9c Our Executive,\xe2\x80\x9d Morris explained, \xe2\x80\x9c was not like a magistrate having\na life interest, much less like one having an hereditary interest in his office. He\nmay be bribed by a greater interest to betray his trust; and no one would say\nthat we ought to expose ourselves to the danger of seeing the first Magistrate\nin foreign pay without being able to guard agst it by displacing him. . . . The\nExecutive ought therefore to be impeachable for treachery; Corrupting his electors,\nand incapacity were other causes of impeachment. For the latter he should be\npunished not as a man, but as an officer, and punished only by degradation from\noffice.\xe2\x80\x9d 52 Morris thus clearly distinguished between mere removal from office,\na sanction aimed at protecting the public from corrupt or otherwise dangerous\nofficials, and regular criminal punishments, aimed at preventing crime by invading\nthe offender\xe2\x80\x99s liberty or property.\nParticipants in the ratification debates similarly pointed out that the punishments\nimposable by the Senate were political, not criminal, sanctions, aimed more at\nprotecting the integrity of the government than at penalizing the offender. Tench\n49See 2 Hawkins, supra at 524 ( \xe2\x80\x9c a man shall not be brought into danger of his life for one and the same offence,\nmore than once\xe2\x80\x9d ). Wood, supra at 664 (\xe2\x80\x9c For one shall not be brought into Danger of his Life for the same offence,\nmore than Once \xe2\x80\x9d )\n50For discussions o f the possible meanings o f \xe2\x80\x98\xe2\x80\x98life or lim b,\xe2\x80\x9d see Thomas, supra at 119-22 (1998), Stephen\nN. Limbaugh, Jr., The Case o f Elx Parte Lange (or How the Double Jeopardy Clause Lost Its \xe2\x80\x9cLife or Lim b"),\n36 Am. Crim L. Rev 53, 6 5 -6 6 (1999), A khil Reed Amar, Double Jeopardy Law Made Simple, 106 Yale L J\n1807, 1810-12(1997)\n51 Admittedly, the one revolutionary state constitution that contained a double jeopardy clause did not contain\nsuch a limiting phrase. See supra n.19.\n52 2 Farrand, supra at 6 8 -6 9\n\n128\n\n\x0cWhether a Former President May Be Indicted and Tried fo r the Same Offenses fo r Which He was\nImpeached by the House and Acquitted by the Senate\n\nCoxe, in one of his American Citizen essays, stressed that the Senate \xe2\x80\x9c can only,\nby conviction on impeachment, remove and incapacitate a dangerous officer, but\nthe punishment of him as a criminal remains within the province o f the courts\no f law." 53 In another essay, Coxe made the same point more fully. The Senate,\nas the impeachment court, \xe2\x80\x9c can produce no punishment in person or property,\neven on conviction. Their whole judicial power lies within a narrow compass.\nThey can take no cognizance of a private citizen and can only declare any dan\xc2\xad\ngerous public officer no longer worthy to serve his country. To punish him for\nhis crimes, in body or estate, is not within their constitutional powers.\xe2\x80\x9d 54 In the\nfirst North Carolina ratifying convention, William Lenoir made the same point\nmore concisely. The punishment for conviction on impeachment, he noted, was\n\xe2\x80\x9c [o]nly removal from office and future disqualification. It does not touch life\nor property.\xe2\x80\x9d 55 Thus, if they thought about a double jeopardy problem at all,\nmany among the framers and ratifiers probably thought the restriction on impeach\xc2\xad\nment sanctions in the first part of the Impeachment Judgment Clause took care\nof the problem. Whether for that reason or because they thought the Impeachment\nJudgment Clause simply did not address the issue, James Wilson and Edmund\nPendleton concluded (as did Representative Dana, Justice Story, and perhaps St.\nGeorge Tucker) that the Impeachment Judgment Clause allowed prosecution fol\xc2\xad\nlowing acquittal by the Senate.\nThe expressio unius reading of the Impeachment Judgment Clause assumes that\nthe founding generation understood an impeachment trial to be an instance of\njeopardy within the meaning of the double jeopardy rule. The evidence on point\nis sparse, but much of it supports the opposite conclusion, namely, that the framers\nand ratifiers believed that an impeachment trial where only removal and disquali\xc2\xad\nfication were at stake did not constitute an instance of jeopardy.\n\n53 2 DHRC, supra at 143.\n54 2 DHRC, supra al 297, see also 13 id. at 434 (\xe2\x80\x9c In all criminal cases, where the property, liberty, or life\nof the citizen is at stake, he has the benefit o f a jury. If convicted on impeachment, which is never done by a\njury in any country, he cannot be fined, imprisoned, or punished, but only may be disqualified from doing public\nmischief by losing his office, and his capacity to hold another \xe2\x80\x9d )\n55 4 Elliot\'s Debates, supra at 204; but see Federalist No. 65, at 442 (Alexander Hamilton) (referring to the\nSenate\xe2\x80\x99s power to dispose o f an impeachment respondent\xe2\x80\x99s \xe2\x80\x9c fame and his most valuable rights as a citizen\xe2\x80\x9d ); 2\nElliot\xe2\x80\x99s Debates, supra at 45 (comment o f Gen. Brooks at the Massachusetts ratifying convention that disqualification\nfrom federal office \xe2\x80\x9c is great punishment\xe2\x80\x9d ), c f Proceedings o f the U.S. Senate in Impeachment Trial o f Alcee L\nHastings, S Doc. 101-18, at 736 (1989) ( \xe2\x80\x9c Hastings Tnal Proceedings\xe2\x80\x9d ) (statement of Sen Specter) W e find the\nuse of the word \xe2\x80\x9c punishment\xe2\x80\x9d in these debates o f little significance in resolving the double jeopardy question\naddressed here. As we explain more fully below, many sanctions that in common parlance might be characterized\nas punishments are not criminal punishments within the meaning o f the double jeopardy rule For example, one\nmight speak of a civil forfeiture as a form of punishment, but it does not normally constitute criminal punishment\ntriggering the protection o f the Double Jeopardy Clause See United States v. Ursery, 518 U.S. 267, 274-88 (1996).\nMoreover, a number of these statements using the word \xe2\x80\x9c punishment\xe2\x80\x9d point out precisely how limited the \xe2\x80\x9c punish\xc2\xad\nments\xe2\x80\x9d available upon conviction by the Senate were See, e.g., 2 DHRC, supra at 297 (statement of Tench Coxe),\n4 Elliot\xe2\x80\x99s Debates, supra at 114 (statement o f James Iredell in North Carolina ratifying convention).\n\n129\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nB. Structural Considerations\nOur examination of the Impeachment Judgment Clause\xe2\x80\x99s text and history reveals\nlittle support for reading into it an implied prohibition on the criminal prosecution\nof those acquitted by the Senate. At the same time, while there is some support\nin the history for the proposition that criminal trial could follow Senate acquittal,\nthat evidence is hardly decisive. Text and history ultimately leave the question\nunresolved. Given that basic uncertainty, three structural considerations lead us\nto conclude that acquittal by the Senate should not prevent regular prosecution.\nThe first rests on the special function of impeachment within the scheme of sepa\xc2\xad\nration of powers. The second and third rest on the distinctive qualities of impeach\xc2\xad\nment verdicts by the Senate as compared to verdicts by criminal juries.\nThe first structural consideration is perhaps the most fundamental. Impeachment\nand criminal prosecution serve entirely distinct goals. Impeachment is one of sev\xc2\xad\neral tools placed in the hands of Congress in order to enable it to check the other\nbranches and thus to maintain the proper separation of powers. The limitation\non impeachment sanctions to removal and disqualification from office and the\nrequirement that removal be mandatory upon conviction show that impeachment\nis designed to enable Congress to protect the nation against officers who have\ndemonstrated that they are unfit to carry out important public responsibilities, not\nto penalize individuals for their criminal misdeeds. The limitation on sanctions\nimposable by the Senate reflects the conviction that the national legislature is not\nto be trusted with dispensing criminal punishments, sanctions aimed not at pro\xc2\xad\ntecting the integrity of the government\xe2\x80\x99s operations but at penalizing individuals\nby taking away their life, liberty, or property. Thus the Impeachment Judgment\nClause\xe2\x80\x99s limitation on Senatorial sanctions is of a piece with the Bill of Attainder\nClause and the Ex Post Facto Clause, provisions in the Constitution also aimed\nat breaking decisively with the long English practice of legislatively imposed\npunishments. Under our constitutional system, the job of determining guilt that\nmay result in criminal punishment is reserved to the courts, where both the original\nConstitution and the Bill of Rights ensure that individuals will not suffer those\nespecially severe sanctions without being afforded a number of procedural protec\xc2\xad\ntions. Impeachment serves the remedial and protective function of guarding the\ngovernment\xe2\x80\x99s integrity and thus its effective functioning, a function appropriately\nentrusted to the legislature. Trials that may lead to the imposition of criminal\npunishments must be supervised by the courts, the branch of the national govern\xc2\xad\nment both suited and required to guard the defendant\xe2\x80\x99s procedural rights.56\n56 As Janies W ilson put it in his Law Lectures o f 1792, \xe2\x80\x9c Impeachments, and offences and offenders impeachable,\ncome not in those descriptions, within the sphere o f ordinary jurisprudence They are founded on different principles;\nare governed by different maxims, and are directed to different objects.\xe2\x80\x9d 1 The Works o f James Wilson 408 (James\nD Andrews, ed., 1896). The staff o f the House Judiciary Committee made the same point at the time of the investiga\xc2\xad\ntion o f President Nixon\' \xe2\x80\x9c Impeachment and the criminal law serve fundamentally different purposes Impeachment\nis the first step in a remedial process \xe2\x80\x94 removal from office and possible disqualification from holding future office.\nThe purpose o f impeachment is not personal punishment, its function is primarily to maintain constitutional govern\xc2\xad\n\n130\n\n\x0cWhether a Former President May Be Indicted and Tried fo r the Same Offenses fo r Which He was\nImpeached by the House and Acquitted by the Senate\n\nA second, closely related structural consideration favoring prosecution following\nacquittal by the Senate is that an acquittal by the Senate may well rest on a legal\njudgment rather than on a judgment that the respondent did not commit the acts\nalleged in the articles of impeachment, that is, a judgment that the respondent\nis not factually guilty. Most often that non-factual basis for acquittal will be that\nalthough the respondent carried out the charged acts, those acts do not amount\nto \xe2\x80\x9c high crimes or misdemeanors.\xe2\x80\x9d 57 Sometimes, though, it may be that the\nSenate lacks the authority to try the respondent. Indeed, of the eight instances\nin which the Senate has failed to convict officers impeached by the House, most\nmay fairly be attributed in significant part either to qualms about the charged\nconduct meeting the constitutional standard for impeachable offenses or to juris\xc2\xad\ndictional doubts.58 It makes little sense for a judgment unrelated to factual guilt\nto prevent bringing a former official to justice for criminal conduct. As the\nSupreme Court has explained in justifying the distinction between re-trials fol\xc2\xad\nlowing reversals of convictions due to trial errors and those due to evidentiary\ninsufficiency, \xe2\x80\x9c it would be a high price indeed for society to pay were every\naccused granted immunity from punishment because of any defect sufficient to\nconstitute reversible error in the proceedings leading to conviction.\xe2\x80\x9d United States\nv. Tateo, 311 U.S. 463, 466 (1964); see Burks, 437 U.S. at 15\xe2\x80\x9416. Similarly,\nit would be a high price indeed for society to pay for every accused official spared\nremoval from office by the Senate\xe2\x80\x99s judgment that the offense fell short o f the\nconstitutional standard, or that it lacked the authority to try the official, to be\nfree \xe2\x80\x94 unlike citizens possessing no federal office \xe2\x80\x94 from prosecution for criminal\nconduct.\nOf course, in the case of trials before the courts our double jeopardy jurispru\xc2\xad\ndence does give ju ry verdicts of not guilty, regardless of their basis, an absolutely\nprohibitive effect on re-trials for the same offenses. See, e.g., Sanabria v. United\nStates, 437 U.S. 54, 64, 75 (1978). While jury verdicts of not guilty are normally\nbased on insufficiency of the government\xe2\x80\x99s proof, they may be based as well\non jurors\xe2\x80\x99 judgments unconnected to the defendant\xe2\x80\x99s factual innocence, for\nexample, on their disagreement with the judge\xe2\x80\x99s statement of the governing law,\ntheir belief that the likely punishment is excessive, or their disapproval of what\nthey take to be improper prosecutorial motives or methods. Although juries lack\nment.\xe2\x80\x9d Staff of the House Comm on the Judiciary, 93d C o n g , 2d S e s s , Constitutional Grounds fo r Presidential\nImpeachment 24 (Comm Print 1974); see also Proceedings o f the United Stales Senate in the Impeachment Trial\no f Walter L. Nixon, J r , A Judge o f the United States District Court fo r the Southern District o f Mississippi, S.\nDoc 101-22, at 36 (1989) ( \xe2\x80\x9c Walter Nixon Trial Proceedings*\xe2\x80\x99) (bnef of the House of Representatives in support\nof the articles o f impeachment\' \xe2\x80\x9c Impeachment is not a criminal proceeding. It is a remedial process designed to\nprotect our institutions of government and the Amencan people from individuals who are unfit to hold positions\nof public trust\xe2\x80\x9d )\n57 Cf. Hoffer & Hull, supra at 114 (statement of Edmund Burke in impeachment tnal of Warren Hastings \xe2\x80\x9c The\nlabour will be on the criminality of the facts, where proof, as I apprehend, will not be contested \xe2\x80\x9d )\n58See, for example, the cases o f Senator William Blount (1799); Associate Justice Samuel Chase (1805); District\nJudge James H. Peck (1831), President Andrew Johnson (1868), Secretary of War William W. Belknap (1876);\nDistrict Judge Charles Swayne (1905)\n\n131\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nthe legal right to engage in such nullification absent legislative authorization, see\nS parf & Hansen v. United States, 156 U.S. 51, 59-107 (1895), they undoubtedly\npossess the power to do so.59 If juries\xe2\x80\x99 ability to acquit against the evidence does\nnot diminish the effect of their acquittals as bars to successive prosecutions, why\nshould the Senate\xe2\x80\x99s authority to acquit on legal grounds justify relaxing the double\njeopardy effect o f their acquittals?\nThe difference between the two cases lies in the different functions served by\nthe Senate in an impeachment trial and by a jury in a criminal trial. The Senate\xe2\x80\x99s\nverdict is different from a criminal ju ry \xe2\x80\x99s in two crucial respects.\nFirst, except in cases of treason or bribery, the Senate\xe2\x80\x99s judgment, unlike a\njury\xe2\x80\x99s, inescapably involves a crucial legal judgment: whether the conduct charged\nconstitutes a \xe2\x80\x9c high crime or misdemeanor.\xe2\x80\x9d The jury in a criminal trial is above\nall a fact-finder; at least in the federal system, its ability to nullify based on its\nown view of the law is tolerated only because it is essential to preserving the\nindependence of juries from judicial coercion and second-guessing. While the\nSenate in an impeachment trial takes on the jury\xe2\x80\x99s role of fact-finder, it also\nassumes the judge\xe2\x80\x99s role of interpreter of the governing law. Far from constituting\na power necessary to protect another function, the Senate\xe2\x80\x99s judgment whether the\ncharged offenses constitute \xe2\x80\x9chigh crimes and misdemeanors\xe2\x80\x9d is an essential part\nof its function, one entrusted to it by the Constitution.\nSecond, and more importantly, the Senate\xe2\x80\x99s verdict differs from a jury\xe2\x80\x99s because\nthe legal judgment the Senate must make is also a special kind of political judg\xc2\xad\nment. The drafters of the Constitution probably assigned the Senate, rather than\nthe regular courts, the task of trying impeachments in part because they recognized\nthat impeachment trials necessarily involve making political judgments. As Ham\xc2\xad\nilton observed in F ederalist 65, impeachable offenses \xe2\x80\x9c are of a nature which may\nwith peculiar propriety be denominated POLITICAL, as they relate chiefly to\ninjuries done immediately to the society itself.\xe2\x80\x9d 60 The Senate\xe2\x80\x99s judgment is polit\xc2\xad\nical in two senses. The uncertain contours of the phrase \xe2\x80\x9c high crimes and mis\xc2\xad\ndem eanors\xe2\x80\x9d mean they must in each case determine whether the charged conduct\nconstitutes a sufficiently serious breach of the public trust to warrant conviction.\nThat determination will appropriately draw on their knowledge of history, their\nunderstanding of the character o f the office involved, and their realistic appraisal\nof the derelictions charged. Their determination will necessarily be shaped by the\nConstitution\xe2\x80\x99s mandate that conviction means removal from office. U.S. Const,\nart. II, \xc2\xa7 4. In order to convict an officer, they must be convinced that his conduct\nmerits his loss of position. In the case of the President, who has been elected\n59 See also Richard St. John, Note, License to Nullify: The Democratic and Constitutional Deficiencies o f Authorized Jury Lawmaking, 106 Yale L J 2563 (1997). Indeed, some leading commentators have suggested that the\nabsoluteness o f the double jeopardy bar created by jury acquittals can be explained only as a shield of the ju ry \xe2\x80\x99s\nauthority to nullify. See Peter Westen & R ichard Drubel, Toward A General Theory o f Double Jeopardy, 1979\nSup. Ct. Rev 81, 122-55 (1978).\n60 The Federalist, supra at 439; see also 1 The Works o f James Wilson, supra at 408.\n\n132\n\n\x0cWhether a Former President May Be Indicted and Tried fo r the Same Offenses fo r Which He was\nImpeached by the House and Acquitted by the Senate\n\nby the entire nation (and who cannot remain in office for more than four years\nwithout again facing the electorate), they must decide whether to undo the will\nof the people.61 Moreover, the necessary link between conviction and removal\nintroduces a second political dimension to the Senate\xe2\x80\x99s judgment as well. Even\nif they conclude that the charged conduct would normally merit removal, they\nmust weigh the strength of that conviction against their judgment about the harm\xc2\xad\nful consequences for the nation of removal at a particular moment in our nation\xe2\x80\x99s\nhistory. If, for example, our country were in the midst of a war, the Senate might\nwell conclude that an acquittal of the President would be the wiser course simply\nbecause his removal would be too costly to the successful prosecution of the war.\nThe necessarily legal and political judgment embodied in a Senate acquittal is\ndistinct from a determination whether the charged conduct violates the regular\ncriminal laws and does not turn on the determination of factual guilt or innocence.\nIt is ultimately the unreviewability of the jury\xe2\x80\x99s making of that factual determina\xc2\xad\ntion that drives the absoluteness of the ban on re-trial for offenses of which a\njury has acquitted a defendant. No such institutional imperative requires a similar\nban following Senate acquittals. On the contrary, the unavoidably legal and polit\xc2\xad\nical character of Senate acquittals suggests the inappropriateness of such a ban.62\nA third structural reason that acquittal by the Senate should not prevent criminal\nprosecution flows from the framers\xe2\x80\x99 concern that partisan loyalties or popular\nsentiment might influence the Senate\xe2\x80\x99s decision to convict or acquit. One of the\n61 One might argue lhat if the President\'s alleged conduct violates a regular criminal law, and the Senate acquits\nbased on a judgment that the conduct does not amount to a high crime or misdemeanor and thus does not merit\nremoval, a ban on posl-acquittal prosecution would not impose a serious cost given the double jeopardy principles\narguably at stake Even if an impeachment tnal is not technically a criminal proceeding and thus the defendant\nhas not been placed in jeopardy within the meaning o f the double jeopardy rule, he has still been subjected to\nan expensive, trying public ordeal. His accusers have still had a chance to try out their evidence and arguments,\na dry run from which subsequent prosecutors may denve advantage. Thus cnminal prosecution after an impeachment\nacquittal arguably still implicates some of the concerns that underlie the double jeopardy rule. Given those concerns,\nthe need to prosecute an offense the Senate has determined does not warrant removal might not be thought sufficient\nto tip the scale in favor of allowing prosecution following Senate acquittal.\nWhatever force this objection may have, we think it does not bear on the quesuon of whether indictment is\nconstitutionally permissible. It simply does not address the fact that the Constitution gives the Senate a judgment\nto make \xe2\x80\x94 whether the charged acts warrant removal from office \xe2\x80\x94 that is distinct from the judgment placed in\nthe hands of a criminal jury Moreover, this argument does not account for the possibility that the Senate might\nconclude, given the circumstances o f the nation at the time, that removal is not an appropriate political remedy\neven for a senous crime.\n62Accord Charles L Black, Jr., Impeachment A Handbook 40-41 (1974); 1 Tnbe, supra at 160\nIn Ashe v. Swenson, 397 U.S. 436 (1970), the Court held that the Double Jeopardy Clause incorporates the rule\nof collateral estoppel in cnminal cases. See also Brown v. Ohio, 432 U.S. 161, 166 n.6 (1977). It thus bars successive\nprosecuUons even in some instances where the offenses are not the same The court in the second prosecution must\n\xe2\x80\x9c examine the record of [the] pnor proceeding, taking into account the pleadings, evidence, charge, and other relevant\nmatter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which\nthe defendant seeks to foreclose from consideration \xe2\x80\x9c Ashe, 397 U.S. at 444 (citauon and internal quotation marks\nomitted) Based on this pnnciple, which the Court has also held is incorporated by the Due Process Clause, see\n/</. at 445, a party acquitted by the Senate might argue that if the record of the Senate trial shows that the Senate\ncould only rationally have based its acquittal on rejection o f a factual finding necessary to his subsequent convicuon,\nthe subsequent prosecution would be barred. We express no view about the correctness of this legal argument Even\nif one were to accept it, though, given the vaned non-factual bases on which the Senate might acquit and the difficulty\nof ascertaining the basis for a decision by a body with one hundred independently-minded members, we think the\nrequired showing would be exceedingly difficult to make\n\n133\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nreasons the framers limited the punishments for conviction on impeachment was\ntheir fear that impeachments were liable to partisan abuse. As Hamilton noted\nin F ederalist 65, \xe2\x80\x9c [t]he prosecution of them . . . will seldom fail to agitate the\npassions of the whole community, and to divide it into parties, more or less\nfriendly or inimical, to the accused. In many cases, it will connect itself with\npre-existing factions, and will inlist all their animosities, partialities, influence and\ninterest on one side, or on the other; and in such cases there will always be the\ngreatest danger, that the decision will be regulated more by the comparitive\nstrength of parties than by the real demonstrations of innocence or guilt.\xe2\x80\x9d 63 The\nConstitution\xe2\x80\x99s requirements that Senators take an oath before convening as an\nimpeachment court and that a two-thirds vote is necessary for conviction were\ndesigned to guard against the influence of these political forces. See U.S. Const,\nart. I, \xc2\xa7 3, cl. 6. Its specification that the Chief Justice rather than the Vice Presi\xc2\xad\ndent should preside when the President is tried reflects a similar concern with\nimpeachment verdicts being swayed by immediate political interests. See id. If\nthe Vice President presided, he might encourage conviction so as to boost himself\ninto the Presidency, especially if the Vice President and President were rivals,\na realistic possibility before the 12th Amendment reformed the electoral college\nin 1804. But, as a number of participants in the ratification debates pointed out,\npartisanship and transitory political passions may sway the Senate to acquit as\nwell as to convict.64 Just as the possibility of partisan convictions helps explain\nthe limitation on impeachment punishments and the lifting of the double jeopardy\nbar for Senate convictions, so the possibility of partisan acquittals supports the\nlifting of the double jeopardy bar for Senate acquittals.\nC. The Double Jeopardy Clause\nThe Double Jeopardy Clause of the Fifth Amendment provides that \xe2\x80\x9c [n]o per\xc2\xad\nson . . . shall . . . be subject for the same offence to be twice put in jeopardy\nof life or lim b.\xe2\x80\x9d U.S. Const, amend. V. For several reasons, we think a party\nacquitted by the Senate may not rely on the Double Jeopardy Clause as a bar\nto prosecution in the courts for the same offenses.\n1. Original Understandings\nFirst, the history of the Double Jeopardy Clause suggests that its drafters under\xc2\xad\nstood the phrase \xe2\x80\x9c in jeopardy o f life or limb\xe2\x80\x9d to exclude impeachment pro\xc2\xad\nceedings. The Clause\xe2\x80\x99s legislative history, like that of the Bill of Rights amend\xc2\xad\nments as a whole, is sparse. We know that in Madison\xe2\x80\x99s proposal to the House,\n63 Id. at 4 3 9 -4 0\n64See, e.g., Letter from W illiam Symmes, Jr., to Peter Osgood, J r , 14 DHRC, supra at 113-14, 4 Elliot\xe2\x80\x99s Debates,\nsupra at 4 5 -4 6 (statement o f Mr. Taylor in N orth Carolina ratifying convention), id. at 117 (statement of Mr.\nSpencer); id at 125 (statement o f M r Porter)\n\n134\n\n\x0cWhether a Former President May Be Indicted and Tried fo r the Same Offenses fo r Which He was\nImpeached by the House and Acquitted by the Senate\n\nwhat became the Double Jeopardy Clause was expressed in these terms: \xe2\x80\x9c No\nperson shall be subject, except in cases of impeachment, to more than one punish\xc2\xad\nment or one trial for the same offence.\xe2\x80\x9d 65 Several House members suggested\ndeleting the phrase \xe2\x80\x9c or one trial,\xe2\x80\x9d but their motion was defeated.66 The version\nadopted by the House followed Madison\xe2\x80\x99s phrasing.67 In response, the Senate ini\xc2\xad\ntially adopted a version of the clause that deleted the reference to impeachment\nand added the phrase \xe2\x80\x9c life or limb\xe2\x80\x9d : \xe2\x80\x9c No person shall be subject to be twice\nput in jeopardy of life or limb by any public prosecution for the same offence.\xe2\x80\x9d 68\nThe Senate adopted the ultimate wording by omitting \xe2\x80\x9c by any public prosecution\xe2\x80\x9d\nwhen it combined the double jeopardy provision with the other clauses that make\nup what became the Fifth Amendment.69\nOne might argue that the Senate\xe2\x80\x99s deletion of the House\xe2\x80\x99s exception for\nimpeachments suggests an intent to include impeachments within the Double Jeop\xc2\xad\nardy Clause\xe2\x80\x99s scope.70 But while we lack direct evidence of the purpose of the\nSenate\xe2\x80\x99s change in language, that explanation seems unlikely. The wording of\nrelated amendments suggests that a more likely explanation for the removal of\nthe exception for impeachments was a recognition that the use of the phrase \xe2\x80\x9c life\nor limb\xe2\x80\x99\xe2\x80\x99 by itself restricted the reach of the clause to a subset of ordinary criminal\ncases. In Madison\xe2\x80\x99s original proposal, the jury trial and grand jury guarantees\nhad been grouped together in an amendment separate from the double jeopardy\nguarantee. The jury trial provision included an express exception for impeach\xc2\xad\nments and the grand jury clause an implicit one: \xe2\x80\x98\xe2\x80\x98The trial of all crimes (except\nin cases of impeachments, and cases arising in the land or naval forces, or the\nmilitia when on actual service in time of war, or public danger,) shall be by an\nimpartial jury of the vicinage . . . ; and in all crimes punishable with loss o f\nlife or member, presentment or indictment by a grand jury shall be an essential\npreliminary.\xe2\x80\x9d 71 Clearly impeachments, not indictments, were the preliminary step\ntoward trial before the Senate. The emphasized phrase seems to have been under\xc2\xad\n\n65 I Annals o f Cong 451-52 (Joseph Gales, ed , 1789), Veil, supra at 5\n<*/</. at 180, 186-87, 199.\n67 Id. at 39.\n68 Id at 39 n.4, The Complete Bill o f Rights 301 (Neal Cogan ed., 1997) ("C ogan\xe2\x80\x99\xe2\x80\x99) As noted above, two state\nratifying conventions, M aryland\xe2\x80\x99s and New York\xe2\x80\x99s, had proposed amendments including a double jeopardy guarantee\nSee 2 Elliot\xe2\x80\x99s Debates, supra at 550; 4 Schwartz, supra at 912. The wording of the New York proposal was: \xe2\x80\x9c That\nno Person ought to be put twice in Jeopardy of Life or Limb for one and the same Offence, nor, unless in case\nof impeachment, be punished more than once for the same Offence \xe2\x80\x9d Id The Senators from New York were Rufus\nKing and Philip Schuyler. 9 Documentary History o f the First Federal Congress xxix (Kenneth R. Bowling &\nHelen E Veit e d s , 1988). King had been a delegate to the Constitutional Convention (from Massachusetts), see\n3 Farrand, supra at 557, but neither he nor Schuyler had been members of the New York ratifying convention,\n2 ElUot\'s Debates, supra at 206-07\n69 Veit, supra at 39 n 14; Cogan, supra at 302-07\n70 See Hastings T nal Proceedings, supra at 736 (statement of Sen Specter).\n71 Veit, supra at 13\n\n135\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nstood to exclude impeachment proceedings72 and to identify a group of serious\ncrimes, probably most if not all felonies (when tried in the regular courts).73 The\nSenate\xe2\x80\x99s substitute for the House version of the Double Jeopardy Clause omitted\nthe express exception for impeachments and added the phrase \xe2\x80\x9c life or limb\xe2\x80\x9d in\none fell swoop. Given Madison\xe2\x80\x99s earlier restrictive use of the similar phrase \xe2\x80\x9c loss\nof life or member,\xe2\x80\x9d it makes more sense to understand the Senate\xe2\x80\x99s deletion of\nthe impeachment exception as an acknowledgment that the use of \xe2\x80\x9c life or limb\xe2\x80\x9d\nmade the express exception for impeachments unnecessary than to view the dele\xc2\xad\ntion in isolation as an attempt to bring impeachment within the Double Jeopardy\nClause\xe2\x80\x99s reach.\nSecond, our interpretation of the legislative history of the Double Jeopardy\nClause fits with the dominant understanding of the reach of the double jeopardy\nrule at the time of the founding. As we explained above, under that understanding\nthe rule was limited to proceedings that placed the defendant in risk of at least\nliberty if not life, and thus a trial in which removal and disqualification are the\nonly possible sanctions does not fit within the rule.74\n2. Current Double Jeopardy Doctrine\nThe Court uses a two-step approach to determining whether a proceeding con\xc2\xad\nstitutes an instance of jeopardy. First, it looks to the legislature\xe2\x80\x99s intent. See, e.g.,\nHudson, 522 U.S. at 103. If the legislature intended the proceeding to be criminal,\nthen the Double Jeopardy Clause applies. If the legislature intended the proceeding\nto be civil, then the Court looks to a series of factors designed to identify criminal\npunishments. If those factors clearly show that the legislature has provided for\nthe imposition of criminal punishment, the Double Jeopardy Clause will apply\ndespite the legislature\xe2\x80\x99s claim that the proceeding is civil.\nAt both the first and second steps of this method, we think the better view\nis that an impeachment trial does not constitute an instance of jeopardy within\nthe meaning of the Double Jeopardy Clause.\nAt the first step, one might argue that the references to impeachment in the\nConstitution suggest that it is a criminal proceeding. Article III, Section 2, Clause\n3 mandates that the \xe2\x80\x9c Trial of all Crimes, except in cases of impeachment, shall\nbe by Jury.\xe2\x80\x9d Article II, Section 4 \xe2\x80\x99s definition of impeachable offenses limits that\ngroup to treason, bribery \xe2\x80\x9c or other high Crimes and Misdemeanors.\xe2\x80\x9d The Presi\xc2\xad\n72 This is so despite the fact that one of the tw o impeachable offenses specified in the Constitution was treason,\nwhich was punishable in the regular English courts by death (and was made a capital crime by the first federal\ncriminal statute, see Act o f A pr 30, 1790, ch. ix, I Stat. ] 12).\n73The House substituted the phrase \xe2\x80\x9c capital, or otherwise infamous crim e,\xe2\x80\x9d but apparently without any change\nin meaning intended. See Cogan, supra at 266\xe2\x80\x9467, 269-70. Roger Sherman of Connecticut had proposed the phrase\n\xe2\x80\x9c any crim e w hereby he may incur loss of life o r any infamous punishment.\xe2\x80\x9d Id. at 266.\n74 See supra pp. 125-26, 128-30.\n\n136\n\n\x0cWhether a Former President May Be Indicted and Tried fo r the Same Offenses fo r Which He was\nImpeached by the House and Acquitted by the Senate\n\ndent\xe2\x80\x99s pardon power, in Article II, Section 2, Clause 1, extends to all \xe2\x80\x9c Offenses\nagainst the United States, except in cases of impeachment.\xe2\x80\x9d 75\nWe find this view unconvincing for several reasons. First, the uses of the term\n\xe2\x80\x9c crimes\xe2\x80\x9d in connection with impeachments occur precisely in contexts that distin\xc2\xad\nguish impeachments from regular criminal proceedings. The reference in Article\nIII, Section 2, Clause 3 establishes that parties who have been impeached, unlike\nregular criminal defendants, are not entitled to a jury, one of the most fundamental\nsafeguards in our system of criminal justice. The definition of impeachable\noffenses in Article II, Section 4 was designed to capture more than ordinary\ncrimes. Second, as we have tried to show above, the framers and ratifiers under\xc2\xad\nstood the limited nature of the sanctions available to the Senate as marking out\nimpeachments as distinct from regular criminal proceedings.76\nThird, the practice of the Senate under the Constitution suggests that, while\nimpeachment trials are akin to criminal trials in many respects, they are fundamen\xc2\xad\ntally different from criminal trials in ways that remove Senate trials from the reach\nof the double jeopardy rule. The clearest examples of this are perhaps the Senate\xe2\x80\x99s\nstandard of proof and its methods for taking evidence. Senators have not consid\xc2\xad\nered themselves bound to apply the beyond-a-reasonable-doubt standard of proof\nrequired in criminal trials.77 See In re Winship, 397 U.S. 358, 361-64 (1970)\n(Due Process Clause mandates beyond-a-reasonable-doubt standard of proof in\ncriminal trials). In one recent impeachment, the Senate overwhelmingly rejected\na motion requiring that standard.78 Since the early part of this century, moreover,\nthe Senate has empowered a committee to take evidence on its behalf rather than\nhearing the evidence itself, and the Senate has now employed that method on\n75 In 1796, the House o f Representatives requested the opinion o f Attorney General Charles Lee on the proper\nmethod o f proceeding against a judge of the Supreme Court for the Northwest Territory who had been accused\nof various improprieties in the conduct of his judicial duties. The Altomey General responded, in part\nA judge may be prosecuted in three modes for official misdemeanors or cnmes. by information, or by\nan indictment before an ordinary court, or by impeachment before the Senate of the United States The\nlast mode, being the most solemn, seems, in general cases, to be best suited to the tnal of so high and\nimportant an officer; but, in the present instance, it will be found very inconvenient, if not entirely impracti\xc2\xad\ncable, on account of the immense distance o f the residence of the witnesses from this city [Philadelphia].\nIn the prosecution of an impeachment, such rules must be observed as are essential to justice; and, if\nnot exactly the same as those which are practiced in ordinary courts, they must be analogous, and as\nnearly similar as to them as forms will permit\n3 Hinds\' Precedents, supra at 982 In light of the great distance between the Territory and the national capital,\nthe Attorney General recommended that the case be brought by information or indictment in the regular courts\nId at 982-83; see also 1 American State Papers 151 (1834) The House apparently agreed with the recommendation,\nand took no further action See id at 157\n76 See supra pp 127-30\n77 See, e.g , Proceedings o f the United States Senate in the T nal o f Impeachment o f Halsted L Ritter, S Doc\nNo 74-200, at 657 (1936) ( \xe2\x80\x9c Ritter Trial Proceedings\xe2\x80\x9d ) (statement o f Sen McAdoo); Hastings Trial Proceedings,\nsupra at 711, 776\xe2\x80\x9477 (statements of Sens Bingaman and Lieberman). Many Senators have based their votes on\nthe beyond-a-reasonable-doubt standard.\n78Proceedings o f the U S Senate in the Impeachment T n a l o f Harry E. Claiborne, S. Doc No 99-48, at 105\xe2\x80\x94\n09, 150 (1986) ( \xe2\x80\x9c Claiborne T nal Proceedings\xe2\x80\x9d ) (motion rejected 75-15)\n\n137\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nthree occasions.79 Such a delegation of the responsibility to hear the evidence\nconflicts with our understanding o f the factfinder\xe2\x80\x99s essential role in a criminal\ntrial.\nThe text of the Constitution, the evidence concerning the founders\xe2\x80\x99 under\xc2\xad\nstanding of the new process of impeachment they were creating, and the Senate\xe2\x80\x99s\npractice suggest that the framers and ratifiers conceived of impeachment trials,\nas Judge Gesell has observed, as sui generis proceedings, bearing some character\xc2\xad\nistics of criminal trials but clearly lacking many others. Hastings v. United States\nSenate, 716 F. Supp. 38, 41 (D.D.C. 1989). Although the evidence is hardly\nunmixed, we think it weighs in favor of the view that the framers and ratifiers\ndid not consider an impeachment trial an instance of jeopardy within the meaning\nof the double jeopardy rule.\nIn the regular case of legislatively created proceedings, the Court has developed\nand employed the second step of its two-step test in order to prevent legislators\nfrom evading the requirements of the Double Jeopardy Clause simply by labeling\na proceeding civil rather than criminal or calling a monetary sanction a tax rather\nthan a fine.80 But when it comes to the framers\xe2\x80\x99 establishment of a new and\ndistinctive process of impeachment, this need to second-guess legislative judg\xc2\xad\nments by looking behind direct evidence of intent simply does not arise. As a\nresult, we believe, when examining a special proceeding whose relationship to\nregular criminal proceedings the framers defined, the first step of the process\nshould end our analysis (especially if the evidence at that step is clear).\nEven if one were to go on to the second step of current double jeopardy analysis\nand judge whether an impeachment trial is a criminal proceeding by determining\nwhether the sanctions upon conviction are criminal punishments,81 the result\nwould only confirm the conclusion reached so far: that an impeachment trial is\nnot a criminal proceeding within the meaning of the Double Jeopardy Clause.\nWith the possible exception of a few years in the early 1990s, the Supreme Court\nhas for several decades applied an open-ended multi-factor test to determine\nwhether a sanction constitutes criminal punishment. Originally developed in a nonDouble Jeopardy case, Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), the\nseven factors are, in the Court\xe2\x80\x99s view, \xe2\x80\x9c neither exhaustive nor dispositive,\xe2\x80\x9d\nUnited States v. Ward, 448 U.S. 242, 249 (1980), but \xe2\x80\x9c useful guideposts,\xe2\x80\x9d Hud\xc2\xad\nson, 522 U.S. at 99. They are: \xe2\x80\x9c (1) \xe2\x80\x9c [wjhether the sanction involves an affirma\xc2\xad\ntive disability or restraint\xe2\x80\x9d ; (2) \xe2\x80\x9c whether it has historically been regarded as a\npunishment\xe2\x80\x9d ; (3) \xe2\x80\x9c whether it comes into play only on a finding of scienter" ;\n79 See Stephen Burbank, Alternative Career Resolution: An Essay on the Removal o f Federal Judges, 76 Ky\nL. Rev. 643, 6 4 7 -4 8 (1988).\n80 See, e.g., United States v. Chouteau, 102 U S 603 (1880), United States v LaFranca, 282 U.S 568 (1931),\nHelvering v M itchell, 303 U S. 391 (1938), Kennedy v Mendoza-Martinez, 372 U S . 144 (1963); Department o f\nRevenue v. Kurth Ranch, 511 U.S. 767 (1994); Ursery v. United States, 518 U S. 267 (1996).\n81 For exam ples o f applying this analysis to form ally civil proceedings, see, e g ., Hudson, 522 U S. at 99; Illinois\nv Vitale, 447 U.S. 410, 415 (1980); Breed v. Jones, 421 U.S 519 (1975); H elvenng v. Mitchell, 303 U.S 391,\n399-401 (1938).\n\n138\n\n\x0cWhether a Former President May Be Indicted and Tried fo r the Same Offenses fo r Which He was\nImpeached by the House and Acquitted by the Senate\n\n(4) \xe2\x80\x9c whether its operation will promote the traditional aims of punishment-retribution and deterrence\xe2\x80\x9d ; (5) \xe2\x80\x9c whether the behavior to which it applies is already\na crime\xe2\x80\x9d ; (6) \xe2\x80\x9c whether an alternative purpose to which it may rationally be con\xc2\xad\nnected is assignable for it\xe2\x80\x9d ; and (7) \xe2\x80\x9c whether it appears excessive in relation\nto the alternative purpose assigned.\xe2\x80\x9d Id. at 99-100 (internal quotation marks\nomitted).\nOf the seven Mendoza-Martinez factors, five strongly indicate that removal is\nnot criminal punishment, one points more tentatively in that direction, and one\npoints tentatively towards treating removal as a criminal sanction. Disqualification\npresents a much closer question because at least one, and possibly two, of the\nfactors that favor treating removal as a non-criminal sanction suggest that disquali\xc2\xad\nfication is a criminal punishment; moreover, in a post-Civil War decision, the\nSupreme Court in dictum characterized disqualification in an impeachment judg\xc2\xad\nment as punishment at least for purposes of bill of attainder and ex post facto\nanalysis. See Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 320 (1866). Still,\nwe believe that those factors in the case of disqualification are not dispositive\nand that the Mendoza-M artinez factors as a whole still support classifying disquali\xc2\xad\nfication as a non-criminal sanction.\nThe first Mendoza-M artinez factor, whether the sanction is an \xe2\x80\x98 \xe2\x80\x98affirmative dis\xc2\xad\nability or restraint,\xe2\x80\x9d is the one that weighs in favor of treating removal as a non\xc2\xad\ncriminal sanction while its significance for disqualification is less clear. Neither\nremoval nor disqualification imposes an affirmative restraint because neither\nrestricts the physical liberty o f the sanctioned individual. In addition, removal\nclearly does not constitute an affirmative disability because it imposes no lasting\nrestrictions on the offender.\nThe question whether disqualification from all federal offices is an affirmative\ndisability is a close one, and we think the better view is that it does constitute\nsuch a disability. The difficulty of the question stems in part from a degree of\ninconsistency between the Court\xe2\x80\x99s bill of attainder and ex post facto cases, in\nwhich it developed the notion o f disability as punishment, and its double jeopardy\ndecisions.\nThe Court first used the phrase \xe2\x80\x9c affirmative disability or restraint\xe2\x80\x9d three years\nbefore M endoza-M artinez in Flemming v. Nestor, 363 U.S. 603 (1960), a challenge\nto a provision of the Social Security Act taking away Social Security benefits\nfrom all individuals who were deported for certain reasons, including (in Nestor\xe2\x80\x99s\ncase) past membership in the Communist Party. The Supreme Court upheld the\nlaw, rejecting, among other contentions, claims that the statute constituted a bill\nof attainder or an ex post facto law. Necessary to both contentions was the propo\xc2\xad\nsition that the sanction constituted punishment. The Court explained that the puni\xc2\xad\ntive character of a sanction is a question of legislative purpose. See id. at 616;\ncf, e.g., DeVeau v. Braisted, 363 U.S. 144, 160 (1960). In determining that the\nstatute before it did not have a punitive purpose, the Court considered several\n139\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\ncircumstances, the first of which was that \xe2\x80\x9c the sanction is the mere denial of\na noncontractual governmental benefit. No affirmative disability or restraint is\nimposed.\xe2\x80\x9d Flemming, 363 U.S. at 617.\nThe Flemming Court looked back to two post-Civil War decisions striking down\nlaws on bill o f attainder and ex p o s t facto grounds. In Cummings v. Missouri,\n71 U.S. (4 Wall.) 277 (1866), the Court invalidated a provision of the Missouri\nconstitution requiring all those who would hold a state office, teach, be an officer\nof a corporation, an attorney, or a clergyman to take an oath affirming, among\nother things, that they had never aided or expressed sympathy for those engaged\nin rebellion against the United States or evaded the draft. Cummings was a\nCatholic priest who had not taken the oath and yet was serving a church in the\nstate, and he had been convicted and fined. Referring to the \xe2\x80\x9c disabilities\xe2\x80\x9d\nimposed by the state constitution, the Court rejected Missouri\xe2\x80\x99s contention that\npunishment was restricted to deprivations of life, liberty, or property:\nThe deprivation of any rights, civil or political, previously\nenjoyed, may be punishment, the circumstances attending and the\ncauses of the deprivation determining this fact. Disqualification\nfro m office m ay be punishment, as in cases o f conviction upon\nimpeachment. Disqualification from the pursuits of a lawful avoca\xc2\xad\n\ntion, or from positions of trust, or from the privilege of appearing\nin the courts, or acting as an executor, administrator, or guardian,\nmay also, and often has been, imposed as punishment . . . .\nThe theory upon which our political institutions rest is, that all men\nhave certain inalienable rights \xe2\x80\x94 that among these are life, liberty,\nand the pursuit o f happiness; and that in the pursuit of happiness\nall avocations, all honors, all positions, are alike open to every one,\nand that in the protection of these rights all are equal before the\nlaw. Any deprivation or suspension of any of these rights for past\nconduct is punishment, and can be in no otherwise defined.\nId. at 320, 321-22 (emphasis added). Punishment, in the Court\xe2\x80\x99s view, therefore\n\xe2\x80\x9c embrac[ed] deprivation or suspension of political or civil rights.\xe2\x80\x9d Id. at 322.82\n\nIn Ex p a rte Garland, 71 U.S. (4 Wall.) 333 (1866), decided the same day, the\nCourt struck down for similar reasons a federal law making the taking of a similar\noath concerning participation in or support for the Confederate cause a condition\nfor practice of law in federal court. The Court stated that \xe2\x80\x9c exclusion from any\n82 The Court quoted the first o f these paragraphs with approval in United States v Brown, 381 U.S. 437, 448\n(1965).\n\n140\n\n\x0cWhether a Former President May Be Indicted and Tried fo r the Same Offenses fo r Which He was\nImpeached by the House and Acquitted by the Senate\n\nof the professions or any of the ordinary avocations of life for past conduct can\nbe regarded in no other light than as punishment for such conduct.\xe2\x80\x9d Id. at 377.83\nThe Court next addressed these issues in United States v. Lovett, 328 U.S. 303\n(1946), in which the Court invalidated as a bill of attainder an appropriations\nact that prohibited any federal agency from paying any further compensation to\nthree particular federal employees, apparently because of the belief that they were,\nin the words of the act\xe2\x80\x99s principal sponsor, \xe2\x80\x9c \xe2\x80\x98crackpot, radical bureaucrats\xe2\x80\x99 and\naffiliates of \xe2\x80\x98Communist front organizations.\xe2\x80\x99 \xe2\x80\x9d Id. at 308-09. After an examina\xc2\xad\ntion of the act\xe2\x80\x99s origins, the Court concluded that its purpose was \xe2\x80\x9c permanently\nto bar them from government service,\xe2\x80\x9d id. at 313, and so it determined to judge\nthe act on that basis. The Court likened the act to those voided in Cummings\nand Garland because it\n*operate[d] as a legislative decree of perpetual exclusion\xe2\x80\x99 from a\nchosen vocation. Ex Parte Garland, supra, [71 U.S.] at 377. This\npermanent proscription from any opportunity to serve the Govern\xc2\xad\nment is punishment, and of a most severe type. It is a type of\npunishment which Congress has only invoked for special types of\nodious and dangerous crimes, such as treason, 18 U.S.C. 2; accept\xc2\xad\nance of bribes by members of Congress, 18 U.S.C. 199, 202, 203;\nor by other government officials, 18 U.S.C. 207; and interference\nwith elections by Army and Navy officers, 18 U.S.C. 58.\nId. at 316.84\n\nThe broad statements in Cummings, Garland, and Lovett that permanent exclu\xc2\xad\nsion from a profession or federal office or employment constitutes a disability\nand punishment stand in some tension with the Court\xe2\x80\x99s pronouncements in two\nS2See also Pierce v Carskadon, (16 W all) 234 (1872), sinking down, on the authonty of Cummings and Garland,\na West Virginia statute imposing a similar exculpatory oath as a condition of the right to peution for the reopening\nof certain sorts o f civil judgments.\nThe Garland Court, though relying directly on Cummings, did, however, make one statement that may suggest\nthat Cummings should not be read in quite the sweeping terms its own language might suggest. The Court noted\nthat \xe2\x80\x9c [tjhe profession o f an attorney and counsellor is not like an office created by an act of Congress, which\ndepends for its continuance, its powers, and its emoluments upon the will of its creator, and the possession of\nwhich may be burdened with any conditions not prohibited by the Constitution Attorneys and counsellors are not\nofficers o f the United States, they are not elected or appointed in the manner prescnbed by the Constitution for\nthe election and appointment of such officers They are officers o f the court\n. " E x parte Garland, 71 U.S\nat 378 (1867)\nThe Court also stated \xe2\x80\x9c The attorney and counsellor being, by the solemn judicial act of the court, clothed with\nhis office, does not hold it as a matter o f grace and favor The right which it confers upon him to appear for\nsuitors, and to argue causes, is something more than a mere indulgence, \xe2\x80\x98revocable at the pleasure of the court,\nor at the command o f the legislature. It is a nght of which he can only be deprived by the judgment of the court,\nfor moral or professional delinquency.\n\xe2\x80\x9c The legislature may undoubtedly prescnbe qualifications for the office, to which he must conform, as it may,\nwhere it has exclusive junsdiction, prescnbe qualifications for the pursuit of any of the ordinary avocations of life,\nThe question, in the case, is not as to the power o f Congress to prescnbe qualifications, but whether that power\nhas been exercised as a means for the infliction o f punishment, against the prohibition o f the Constitution \xe2\x80\x9d Id\nat 379-80.\n84 For a longer list, see DeVeau v Braisted, 363 U S 144, 159 (1960).\n\n141\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nof its leading double jeopardy decisions. In Helvering v. Mitchell, 303 U.S. 391\n(1938), the Court\xe2\x80\x99s seminal New Deal decision marking its willingness to give\nCongress greater leeway to impose civil sanctions free from the constraints of\nthe Double Jeopardy Clause, the Court found a special \xe2\x80\x9c tax\xe2\x80\x9d imposed on those\nwho fraudulently underreported their income on their federal tax return to be a\ncivil sanction and thus imposable despite the defendant\xe2\x80\x99s prior acquittal of a\ncriminal charge, based on the same acts, of fraudulently evading payment of his\nfull income tax bill. In assessing whether the special tax was a punitive or remedial\nsanction, the Court observed that one remedial sanction \xe2\x80\x9c which is characteris\xc2\xad\ntically free of the punitive criminal element is revocation o f a privilege voluntarily\ngranted.\xe2\x80\x9d Id. at 399. As examples, the Court gave deportation of aliens and\ndisqualification of attorneys to practice before certain courts. Id. at 399 n.2. Sixty\nyears later, in its most recent decision to address these issues, the Court expressly\nendorsed that conclusion. In Hudson v. United States, 522 U.S. 93 (1997), the\nCourt held that permanent exclusion from employment by any federally insured\nbank did not constitute criminal punishment. It reached that conclusion by\napplying the Mendoza-Martinez factors, and it stated that \xe2\x80\x9c the sanctions imposed\ndo not involve an \xe2\x80\x98affirmative disability or restraint,\xe2\x80\x99 as that term is normally\nunderstood. While petitioners have been prohibited from further participating in\nthe banking industry, this is \xe2\x80\x98certainly nothing approaching the \xe2\x80\x9c infamous punish\xc2\xad\nment\xe2\x80\x9d of imprisonment.\xe2\x80\x99 Flemming v. Nestor, 363 U.S. 603, 617 (I960).\xe2\x80\x9d Id.\nat 104.85\nW hatever tension may exist between the more sweeping language in Cummings,\nGarland, and Lovett, on the one hand, and Helvering and Hudson, on the other,\nthe latter decisions do not directly reject the Court\xe2\x80\x99s earlier statements as applied\nto disqualification from federal office. Even if one took the view (supported per\xc2\xad\nhaps by G arland, but not Lovett) that the right to hold congressionally established\nfederal offices is a \xe2\x80\x9c privilege voluntarily granted,\xe2\x80\x9d Helvering, 303 U.S. at 399,\nit would be much more difficult to characterize the right to run for those elective\noffices created by Constitution in similar terms. The qualifications for those offices\nare established by the Constitution, and may not be modified by either Congress\nor the States. See P ow ell v. McCormack, 395 U.S. 486 (1969); U.S. Terms Limit,\nInc. v. Thornton, 514 U.S. 779 (1995). Disqualification from those constitutionally\ncreated offices, if not from legislatively created ones, constitutes an affirmative\ndisability.86\n85 See also Ex p a n e Wall, 107 U.S. 265, 288 (1883) (upholding the summary disqualification from practice in\na particular federal district court o f an attorney w ho participated in the lynching of a prisoner); Hawker v. New\nYork, 170 U S 189, 196-99 (1898) (upholding state statute prohibiting those ever convicted of a felony from prac\xc2\xad\nticing medicine); United States v. Rusk, 96 F3d 777, 778-79 (5th Cir. 1996) (collecting pre-Hudson court of appeals\ndecisions finding debarment from regulated industries or professions to be civil sanctions, not cnminal punishment).\n86 A significant bit o f evidence supporting that view appears in the text of the Fourteenth Amendment. Section\n3 of that amendment disqualified from federal office all those who, as federal or state officeholders, had taken\nan oath to support the Constitution and then had participated in o r aided insurrection against the federal government.\nThe final sentence o f the section then states \xe2\x80\x9c B ut Congress may by a vote o f two-thirds o f each House, remove\nsuch disability." U.S Const, amend. XIV, \xc2\xa73 (em phasis added)\n\n142\n\n\x0cWhether a Former President May Be Indicted and Tried fo r the Same Offenses fo r Which He was\nImpeached by the House and Acquitted by the Senate\n\nThe second Mendoza-Martinez factor is whether the sanction \xe2\x80\x9c has historically\nbeen regarded as punishment.\xe2\x80\x9d Although the historical record is not unambiguous,\nwe think that, as discussed earlier in this memorandum, both the evidence con\xc2\xad\ncerning the framing and ratification of the Constitution and the predominant views\nexpressed by participants in impeachment trials support the judgment that removal\nand disqualification for conviction upon impeachment have been seen not as\ncriminal punishments but as sanctions with principally remedial goals. The actions\nby the House and Senate in the 1980s judicial impeachments discussed in the\nnext part of this memorandum, each of which involved a defendant previously\nprosecuted in the courts, also support that conclusion.\nAt least two considerations may be raised against this view, however. First,\nwhile removal has an obvious remedial goal and effect, disqualification\xe2\x80\x99s remedial\nfunction may be less clear. As the record of impeachment trials suggests, though,\nRepresentatives and Senators have seen disqualification\xe2\x80\x99s non-punitive purpose as\npreventive or protective. Disqualification prevents those who have abused posi\xc2\xad\ntions of public trust from doing so again and thus protects the integrity of the\ngovernment\xe2\x80\x99s activities. Admittedly, in one of its bill of attainder cases, the Court\nhas expressed some skepticism about this sort of argument. In United States v.\nBrown, 381 U.S. 437 (1965), the Court undid as a bill of attainder a criminal\nstatute prohibiting anyone who had been a member of the Communist Party within\nthe past five years from being an officer or employee of a labor union. The Solic\xc2\xad\nitor General argued that the statute\xe2\x80\x99s prohibition on union employment or\nofficership did not constitute punishment because it \xe2\x80\x9c was enacted for preventive\nrather than retributive reasons \xe2\x80\x94 that its aim is not to punish Communists for what\nthey have done in the past, but rather to keep them from positions where they\nwill in the future be able to bring about undesirable events,\xe2\x80\x9d id. at 456\xe2\x80\x9457, an\nargument the Court had apparently embraced fifteen years earlier in American\nCommunications A ss \xe2\x80\x99n v. Douds, 339 U.S. 382, 413-14 (1950). This time around,\nthe Court was unwilling to follow the government\xe2\x80\x99s reasoning: \xe2\x80\x9c It would be\narchaic to limit the definition of \xe2\x80\x98punishment\xe2\x80\x99 to \xe2\x80\x98retribution.\xe2\x80\x99 Punishment serves\nseveral purposes; retributive, rehabilitative, deterrent \xe2\x80\x94 and preventive. One of the\nreasons society imprisons those convicted of crimes is to keep them from inflicting\nfuture harm, but that does not make imprisonment any the less punishment.\xe2\x80\x9d\nBrown, 381 U.S. at 458. But this statement from Brown is inapposite to the ques\xc2\xad\ntion before us. That a criminal punishment may aim to prevent further criminality\ndoes not mean that all sanctions with preventive ends are criminal. Indeed, most\nregulatory sanctions count prevention among their prominent goals. It is the cen\xc2\xad\ntrality of prevention, as compared to retribution and deterrence, that helps mark\ndisqualification by the Senate as a non-criminal sanction. See Hudson, 522 U.S.\nat 105 (the presence of one arguably punitive purpose is insufficient to brand\na sanction as criminal).\n143\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nA second, more historically grounded, objection to the view that removal and\ndisqualification is not punishment rests on the significant number of federal\ncriminal statutes that have authorized removal or disqualification from federal\noffice as a punishment for crime.87 At the state level, statutory or constitutional\nprovisions for removal and disqualification of officials convicted of crime are even\nmore common.88 None of these federal statutes provides for disqualification from\noffice as the sole result of a conviction,89 and all but one of them may properly\nbe viewed, as is true of similar state-law provisions, as mandating collateral and\nremedial consequences of criminal conviction rather than as defining one of the\npunishments for the specified crimes. See United States v. Waddell, 112 U.S. 76,\n82 (1884) (\xe2\x80\x9c this language . . . is not the sentence of the court, but an indelible\ndisgrace affixed to the party convicted by the declaration of the law itse lf\xe2\x80\x99).90\nIndeed, so learned a jurist as Justice Story wrote in 1833 that \xe2\x80\x9c [i]n the ordinary\ncourse of the administration of criminal justice, no court is authorized to remove,\nor disqualify an offender, as a part of its regular judgment. If it results at all,\nit results as a consequence, and not as a part o f the sentence.\xe2\x80\x9d 91 If there have\nbeen one or two instances in which disqualification was made part of the punish\xc2\xad\nment itself, they are exceptions to the general pattern of disqualification as a legis\xc2\xad\nlatively mandated collateral consequence of criminal conviction, designed to pro\xc2\xad\ntect the public from unfit officers rather than to punish the offender convicted\nof such a crime.\nThe import of the third Mendoza-Martinez criterion is uncertain. On the one\nhand, several considerations suggest that a finding of scienter is not absolutely\nnecessary for impeachment. Other than by implication in the definition of\nimpeachable offenses, the Constitution does not impose a scienter requirement.\nMoreover, in the second federal impeachment, the Senate convicted and removed\na federal judge for drunkenness on the bench and for flagrantly erroneous rulings\nin a forfeiture proceeding despite the fact that it heard evidence submitted by\nthe judge\xe2\x80\x99s son that the judge was insane and had been at the time of the charged\n87 A dozen o f these statutes passed before the Civil War, four by the first Congress, are discussed in M ana Simon,\nBribery and Other Not So \xe2\x80\x9cG ood B e h a v io r C n m in a l Prosecution as a Supplement to Impeachment fo r Federal\nJudges, 94 Colum. L. Rev. 1617, 1636-47 (1994). One o f the criminal provisions of the Civil Rights Act of 1870\n(the predecessor o f 18 U.S.C \xc2\xa7241) mandated disqualification for those convicted of conspiring to deprive someone\no f his or her federal rights See, e.g., United States v. Waddell, 112 U S 76 (1885). For more recent examples,\nmany of which are the successors o f these early statutes, see Lovett, 328 U S. at 316, DeVeau, 363 U S. at 15859. At least four o f the statutes providing for disqualification from federal office of those convicted of particular\noffenses remain in the U.S Code See 8 U S.C. \xc2\xa71425 (desertion and draft evasion); 18 U S C. \xc2\xa7201 (bribery of\nfederal officials, w itnesses), \xc2\xa7 592 (military interference at polls), \xc2\xa7 593 (military interference in elections)\n&sSee, e.g., 10 A L R 5th 139 (1993)\n89 One o f the statutes, that prohibiting desertion from the military and draft evasion, imposes disqualification from\noffice along with deprivation o f citizenship. See 8 U S C. \xc2\xa7 1425.\n90The one that is harder to square with this view is the bribery statute, 18 U S C \xc2\xa7201, which (since it was\namended in 1962, see S. Rep. No. 87-2213 (1962)) leaves the imposiuon o f disqualification to the discretion of\nthe court See also Ex p a n e Wilson, 114 U.S 417, 427 (1885) (referring to disqualification in 1790 bribery act\nas \xe2\x80\x9c punishm ent\xe2\x80\x9d ), Mackin v United States, 117 U.S. 348, 352 (1886) (describing disqualification in one provision\no f Civil Rights Act o f 1870 as \xe2\x80\x9c in the nature o f an additional punishment\xe2\x80\x9d ).\n91 2 Story\xe2\x80\x99s Commentaries, supra \xc2\xa7 784, at 254.\n\n144\n\n\x0cWhether a Former President May Be Indicted and Tried fo r the Same Offenses fo r Which He was\nImpeached by the House and Acquitted by the Senate\n\nconduct. The conviction of Judge Pickering has been seen by some as an instance\nof conviction of a defendant lacking a criminal mental state.92 Furthermore, given\nthat the ultimate touchstone for conviction upon impeachment is conduct that\nclearly demonstrates unfitness for office, before more modem solutions, see U.S.\nConst, amend. XXV (providing procedures for coping with Presidential inca\xc2\xad\npacity); Judicial Councils Reform and Judicial Disability Act, 28 U.S.C. \xc2\xa7 372\n(authorizing methods short of removal to cope with judicial incapacity), impeach\xc2\xad\nment might well have been the only avenue for removal of officers who were\nclearly incapable of carrying out their duties.93 The difficulty of determining\nwhether an impeachable offense must include an element of scienter stems in part\nfrom the fact that conduct need not be previously defined as criminal in order\nto support an impeachment charge and in part from the somewhat uncertain\nmeaning of the term \xe2\x80\x9c scienter.\xe2\x80\x9d\nOn the other hand, two considerations support the conclusion that scienter is\na necessary element of an impeachable offense. First, the evolution of the language\ndefining impeachable offenses at the Constitutional Convention suggests that the\nframers sought to exclude mere negligence in the meeting of official responsibil\xc2\xad\nities.94 The phrase originally adopted to define the scope of impeachable conduct\nwas \xe2\x80\x9c malpractice or neglect of duty.\xe2\x80\x9d 95 Later on the Convention considered lim\xc2\xad\niting impeachable offenses to treason and bribery, or perhaps \xe2\x80\x9c corruption\xe2\x80\x9d as\nwell.96 Near the end of their meetings, several delegates thought this definition\nwas too limited and suggested adding \xe2\x80\x9c maladministration.\xe2\x80\x9d Madison, however,\nobjected that this term was too loose and would leave the President serving at\nthe \xe2\x80\x9c pleasure of the Senate.\xe2\x80\x9d 97 The Convention then settled on \xe2\x80\x9c other high\ncrimes and misdemeanors\xe2\x80\x9d apparently as a compromise, broadening the impeach\xc2\xad\nable offenses beyond treason and bribery but restricting them more narrowly than\nmere \xe2\x80\x9c maladministration.\xe2\x80\x9d That progression suggests that the framers considered\nsomething beyond negligence in the handling of official responsibilities as nec\xc2\xad\nessary to impeachable conduct, trusting that elections would provide sufficient\ncheck against the less culpable forms of misconduct.\nSecond, as Madison\xe2\x80\x99s comment about the danger of impeachment being wielded\nas a tool of political control suggests, impeachment should not be used as a means\nto punish officials for reasonable, good-faith disagreements over the reach of statu\xc2\xad\ntory or constitutional provisions. The acquittal of Justice Chase, for example,\nstands for the proposition that impeachment should not lie simply because Con\xc2\xad\n92 Cf. Agnew B rief at 9 (asserting that acquittal based on insanity should not bar impeachment)\n93 See The Federalist No. 79, supra at 533 (Alexander Hamilton) (ambiguous suggestion that insanity, if not other\ncauses of inability, would justify impeachment and removal), but see id (stating that the Constitution does not\ninclude any provision for removing judges based on \xe2\x80\x9c inability\xe2\x80\x9d )\n94 See Office o f Legal Counsel, The Law of Impeachment, Appendix 1: The Concept of Impeachable Offense\n10-15 (1974)\n955ee 1 Farrand, supra at 88; 2 id. at 64-69, 116.\n96See id. at 185-86, 499.\n\xe2\x80\x9d Id at 550.\n\n145\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\ngress concludes that a judge has taken an erroneous view of the law.98 The\nacquittal of President Johnson similarly stands for the proposition that a President\nshould not be impeached simply because he refuses to carry out a law that he\nreasonably believes is unconstitutional. Cf. Presidential Authority to Decline to\nExecute Unconstitutional Statutes, 18 Op. O.L.C. 199 (1994) (outlining cir\xc2\xad\ncumstances in which President may appropriately decline to execute statutory\nprovisions he believes are unconstitutional).\nThe fourth Mendoza-Martinez factor is whether the sanction will \xe2\x80\x9c promote the\ntraditional aims of punishment \xe2\x80\x94 retribution and deterrence.\xe2\x80\x9d We think the answer\nhere is \xe2\x80\x9c no.\xe2\x80\x9d As the discussion of the Impeachment Judgment Clause during\nthe ratification debates suggests, contemporaries understood the regular criminal\npunishments available in addition to removal and disqualification as the vehicles\nfor exacting retribution. While removal and disqualification are likely to have,\nand were intended to have, some deterrent effect, that is true of virtually any\ngovernmental exaction. Accordingly, the Court has reasoned, \xe2\x80\x9c the mere presence\nof [a deterrent] purpose is insufficient to render a sanction criminal, as deterrence\n\xe2\x80\x98may serve civil as well as criminal goals.\xe2\x80\x99 \xe2\x80\x9d Hudson, 522 U.S. at 105 (citations\nomitted); see also United States v. Ursery, 518 U.S. at 292.\nUnder the fifth M endoza-M artinez factor, \xe2\x80\x9c whether the behavior to which [they]\nappl[y] is already a crim e,\xe2\x80\x9d the sanctions that the Senate may impose are not\ncriminal punishments. O f course, only conduct that is already defined as criminal\nwill provide a basis for subsequent criminal prosecution of an impeached official,\nand thus only cases involving criminal conduct will raise the double jeopardy\nissue addressed in this memorandum. But as the development of impeachment\nlaw before the Constitution, the debates at the time of the founding, and the history\nof impeachments under the Constitution show, despite the protestations of many\nimpeachment defendants to the contrary, officials may be impeached and con\xc2\xad\nvicted for conduct that is not prohibited by the regular criminal laws.99\nThe sixth and seventh Mendoza-Martinez factors are whether a purpose other\nthan punishment may \xe2\x80\x9c rationally\xe2\x80\x9d be assigned to the sanction and whether the\nsanction \xe2\x80\x9c appears excessive in relation to the alternative purpose assigned.\xe2\x80\x9d In\nour view, these are the most important considerations for they go most directly\nto the ultimate question of legislative (or drafters\xe2\x80\x99 and ratifiers\xe2\x80\x99) purpose. The\nsame sanction may have either a punitive or a non-punitive purpose and thus may\nbe characterized as criminal punishment in one circumstance and as a civil sanc\xc2\xad\ntion in another. Compare, e.g., Flemming, 363 U.S. at 617 (imprisonment as\npunishment); M endoza-M artinez , 372 U.S. at 165 (deprivation of nationality in\none section of the Immigration and Nationality Act as punishment), with Bell v.\nWolfish, 441 U.S. 520, 533-39 (1979) (imprisonment in the context of reasonable\n" S e e , e g , William H Rehnquist, Grand Inquests 114(1992).\n99See Hull & Hoffer, supra at 78, 116-23, 2 6 1 -6 2 ; Michael J. Gerhardt, The Federal Impeachment Process chs.\n1, 2, 9 (2d ed 2000); Rehnquist, supra at 274\n\n146\n\n\x0cWhether a Former President May Be Indicted and Tried fo r the Same Offenses fo r Which He was\nImpeached by the House and Acquitted by the Senate\n\npre-trial detention not punishment); Mendoza-Martinez, 372 U.S. at 164 (inter\xc2\xad\npreting Perez v. Brownell, 356 U.S. 44 (1958) as based on view that deprivation\nof nationality in another section of Immigration and Nationality Act not punish\xc2\xad\nment). Ultimately it is the purpose for which the sanction is applied that will\ndetermine its character.\nAnd when it comes to disqualification, the Court has emphasized, from its postCivil War bill of attainder decisions to the modem era, that it is the closeness\nof the fit between the causes of disqualification and the positions from which\nthe individual is disqualified that most clearly reveals a non-punitive purpose. In\nCummings, the Court concluded that the disqualifying provision in the Missouri\nconstitution was a penalty largely because it was \xe2\x80\x9c evident from the nature of\nthe pursuits and professions of the parties, placed under disabilities by the constitu\xc2\xad\ntion of Missouri, that many of the acts, from the taint of which they must purge\nthemselves, have no possible relation to their fitness for those pursuits and profes\xc2\xad\nsions.\xe2\x80\x9d Cummings, 71 U.S. at 319; see also Garland, 71 U.S. at 379-80. In Dent\nv. West Virginia, 129 U.S. 114 (1889), a decision upholding West Virginia\xe2\x80\x99s med\xc2\xad\nical licensure statute, Justice Field, who had written the majority opinions in both\nCummings and Garland, distinguished those decisions by explaining that they\nturned on the conclusion that \xe2\x80\x9c as many of the acts from which the parties were\nobliged to purge themselves by the oath had no relation to their fitness for the\npursuits and professions designated, . . . the oath was not required as a means\nof ascertaining whether the parties were qualified for those pursuits and profes\xc2\xad\nsions, but was exacted because it was thought that the acts deserved punishment.\xe2\x80\x9d\nId. at 126; see also Hawker v. New York, 170 U.S. 189, 198-99 (1898). More\nrecently, in Flemming v. Nestor, 363 U.S. 603 (1960), the Court endorsed the\nsame view: \xe2\x80\x9c Where the source of legislative concern can be thought to be the\nactivity or status from which the individual is barred, the disqualification is not\npunishment even though it may bear harshly upon one affected. The contrary is\nthe case where the statute in question is evidently aimed at the person or class\nof persons disqualified.\xe2\x80\x9d Id. at 614.\nHere, the core \xe2\x80\x9c source of the legislative concern,\xe2\x80\x9d abuse of federal office, is\nprecisely \xe2\x80\x9c the activity or status from which the individual is barred.\xe2\x80\x9d The nonpunitive purpose which may rationally be assigned to removal and disqualification\nis keeping government authority out of the hands of those who have demonstrated\ntheir disregard for the obligations of public office. In relation to that purpose,\nthese sanctions, far from being excessive, are deftly tailored. Unlike the prohibi\xc2\xad\ntions in Cummings and Garland, they do not reach beyond the exact sphere of\nthe misconduct and thus the threat: federal office.\nThe Court\xe2\x80\x99s statement in Cummings that disqualification in an impeachment\njudgment constitutes punishment does not dissuade from concluding that such\ndisqualification is not punishment within the meaning of the Double Jeopardy\nClause. The statement in Cummings was dictum unsupported by any reasoning\n147\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nconcerning the special character or function of impeachment proceedings.100\nMoreover, as the Court\xe2\x80\x99s more recent bill of attainder decisions suggest, the range\nof sanctions that count as punishment for purposes of the Bill of Attainder Clause\nmay well be broader than the range of penalties that amount to criminal punish\xc2\xad\nment under the Double Jeopardy Clause. In Selective Service System v. Minnesota\nPublic Interest Research Group, 468 U.S. 841 (1984), the Court stated that it\nlooks to three considerations in determining whether a statute inflicts punishment\nfor bill o f attainder purposes: \xe2\x80\x9c (1) whether the challenged statute falls within the\nhistorical meaning of legislative punishment; (2) whether the statute, \xe2\x80\x98viewed in\nterms of the type and severity o f burdens imposed, reasonably can be said to\nfurther nonpunitive legislative purposes\xe2\x80\x99; and (3) whether the legislative record\n\xe2\x80\x98evinces a congressional intent to punish.\xe2\x80\x99 \xe2\x80\x9d Id. at 852 (quoting Nixon v. General\nServs. Admin., 433 U.S. 425, 473, 475-76 (1977)). The second of those criteria\nis quite similar to the sixth M endoza-Martinez factor. But the Court\xe2\x80\x99s recent bill\nof attainder criteria leave out a number of the Mendoza-Martinez factors that\nwould tend to narrow the class of punitive sanctions \xe2\x80\x94 whether the sanction con\xc2\xad\nstitutes an affirmative disability or restraint, whether a finding of scienter is nec\xc2\xad\nessary, and whether the conduct to which it applies is already criminal. Recog\xc2\xad\nnizing that criminal punishments under the Double Jeopardy Clause may form\na subset of punishments under the Bill of Attainder Clause also helps relieve the\napparent tension between, on the one hand, the bill of attainder decisions\xe2\x80\x99 asser\xc2\xad\ntions that disqualification from a profession constitutes punishment, and, on the\nother, H elvering\' s and Hudson\'s holdings that bars on participation in particular\nprofessions did not amount to punishment within the meaning of the Double Jeop\xc2\xad\nardy Clause.\nOn balance, then, we conclude that removal and disqualification when imposed\nby the court of impeachments are best seen as special civil sanctions rather than\nas criminal punishments. The historical evidence demonstrating the founders\xe2\x80\x99\nintent to break with the English tradition of criminal punishments and to codify\nthe American practice of limited impeachment sanctions, the record of impeach\xc2\xad\nment trials showing the House\xe2\x80\x99s and Senate\xe2\x80\x99s endorsement of that view, and even\nthe criteria of current double jeopardy law all support the conclusion that the sanc\xc2\xad\ntions the Constitution places in the Senate\xe2\x80\x99s hands are not criminal punishments\nwithin the meaning of the Double Jeopardy Clause.101\n100 M oreover, Cum mings\' flat statement that disqualification upon impeachment constitutes punishment seems\ninconsistent with its own emphasis on whether the sancuon is closely tied to fitness to hold the office or practice\nthe occupation, an em phasis stressed in several o f its later decisions.\n101 Having considered the Impeachment Judgment Clause and the Double Jeopardy Clause at some length, we\nshould briefly note that we think the Due Process Clause o f the Fifth Amendment does not create a bar to prosecution\nfollowing acquittal by the Senate. The Due Process Clause incorporates the guarantees of the Double Jeopardy Clause,\nsee Benton v. Maryland, 395 U.S. 784 (1969), but it offers little, if any, additional protection, see Dvwhng v United\nStates, 493 U.S 342, 3 52-54 (1990) ( \xe2\x80\x98\xe2\x80\x98Beyond the specific guarantees in the Bill of Rights, the Due Process Clause\nhas limited operation. . . . We decline to use the Due Process Clause as a device for extending double jeopardy\nprotection to cases where it would otherwise n o t extend.\xe2\x80\x9d ) In the special circumstance of prosecutions following\n\n\x0cWhether a Former President May Be Indicted and Tried fo r the Same Offenses fo r Which He was\nImpeached by the House and Acquitted by the Senate\n\nIII. The 1980s Impeachment Trials\nThe \xe2\x80\x9c case law\xe2\x80\x9d that gives meaning to the constitutionally defined process of\nimpeachment is made largely by Congress. The three impeachment trials carried\nout during the 1980s bolster the proposition that the Constitution permits prosecu\xc2\xad\ntion of a former official for the same offenses of which he has been acquitted\nby the Senate.\nAfter a 50-year hiatus as a court of impeachments, the Senate tried and con\xc2\xad\nvicted three district court judges during the 1980s. In each case, the defendant\nhad previously been prosecuted in the courts. In each case, the defendant chal\xc2\xad\nlenged the propriety of his impeachment both in court and before Congress. As\na result, these proceedings gave the courts and Congress an opportunity to address\nwhether former conviction or acquittal in the courts should bar trial before the\nSenate for the same offenses. One district court and both houses of Congress\nconcluded that prior criminal judgments did not preclude impeachment and\nconviction for the same offenses.\nJudge Harry E. Claiborne and Judge Walter L. Nixon were both tried and con\xc2\xad\nvicted of federal offenses.102 Although they were not the first federal judges to\nbe found guilty of crimes while in office, they were the first to refuse to resign\ntheir judicial posts.103 The House thus impeached them for the offenses of which\nthey had already been convicted (as well as other conduct) and the Senate tried\nand convicted them and removed them from office.\nNeither Claiborne nor Nixon directly argued to the House or Senate that double\njeopardy should bar their impeachment and trial. On the contrary, in Claiborne\xe2\x80\x99s\ncase the House managers contended that the House and Senate should each be\nbound by the guilty verdicts rendered by the jury that had sat in the judge\xe2\x80\x99s\ncriminal trial, and Claiborne argued that the impeachment process was distinct\nfrom regular prosecution and that separation of powers and due process concerns\nimpeachment trials, the Constitution establishes the process that is due For the reasons given in the last two sections\nof this memorandum, we believe that process includes the possibility o f prosecution following acquittal by the Senate\nIn individual cases, parties acquitted by the Senate and then prosecuted in the courts for the same offenses might\nraise due process claims based on the particular circumstances of their cases. For example, an individual might\nargue that the extensive publicity surrounding his impeachment by the House and tnal in the Senate made it impos\xc2\xad\nsible for him to receive a fair tnal in the courts. See, e g , Nebraska Press A ss\'n v. Stuart, 427 U S . 539, 55156 (1976). We do not address these sorts o f as-applied due process claims. Our analysis is limited to determining\nwhether the Constitution as a general matter prohibits or permits criminal prosecution for the same offenses of\nwhich a party was acquitted by the Senate.\n,02Claibome. a district judge for the District o f Nevada, was convicted in 1984 on two counts of willfully under\xc2\xad\nreporting his income on federal income tax returns After Claiborne was indicted, he filed a motion to quash, claiming\nthat the Consutution required that he be impeached and removed from office before he could be criminally indicted.\nThe district court rejected the mouon, and on interlocutory review a special panel of three circuit court judges\nfrom outside Claiborne\xe2\x80\x99s circuit affirmed United States v. Claiborne, 765 F.2d 784, 788-89 (9th Cir 1985); 781\nF.2d 1327, 1327-30 (Reinhardt, J., dissenting from denial o f rehearing en banc). Nixon, chief judge of the District\nCourt for the Southern District o f Mississippi, was convicted in 1986 of two counts of peijury before a grand jury\n(and acquitted o f one count of bribery and one other count o f pequry) See United States v. Nixon, 816 F 2d 1022,\n1023-25 (5th Cir. 1987)\n103 See United Slates v Isaacs, 493 F 2 d 1124 (7th Cir 1974) (Circuit Judge Otto Kemer), see generally Joseph\nBorkrn, The Corrupt Judge (1962)\n\n149\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nrequired the House and Senate to do their own factfinding.104 In both cases, the\nSenate accepted the evidence from the prior criminal trials, took some evidence\nof its own, and apparently did not consider itself bound by the juries\xe2\x80\x99 verdicts.105\nAlthough neither the House nor the Senate squarely passed on double jeopardy\nchallenges in the Claiborne and Hastings cases, the fact that they impeached, tried,\nand convicted the defendants indicates that they found that prior conviction was\nno bar to trial before the Senate on the same charges.106 The House\xe2\x80\x99s and Senate\xe2\x80\x99s\nactions thus suggest that they did not consider trial before the Senate an instance\nof jeopardy within the meaning of the Double Jeopardy Clause.\nIt may be argued that, although trial before the Senate is an instance of jeopardy,\nthe Impeachment Judgment Clause permits such trial following criminal convic\xc2\xad\ntion. That Clause expressly allows for criminal trial after conviction by the Senate.\nSo, one might argue, it permits the reverse sequence as well: trial before the\nSenate following criminal conviction. By similar logic, if the Impeachment Judg\xc2\xad\nment Clause bars prosecution following Senate acquittal, it should bar trial in\nthe Senate following acquittal in the courts. In carrying out the impeachment trial\nof Judge Alcee Hastings, however, the Senate rejected this view that the relation\xc2\xad\nship between criminal prosecution and impeachment trials could turn on whether\nthe prior judgm ent was a conviction or an acquittal.\nFollowing a jury trial, Judge Alcee Hastings was acquitted in 1983 of conspiring\nto take a bribe and of obstructing justice. In 1988, pursuant to 28 U.S.C. \xc2\xa7 372(c),\nthe 11th Circuit Judicial Council certified to the Judicial Conference of the United\nStates that Hastings had engaged in conduct that might constitute an impeachable\noffense and the Judicial Conference made a similar certification to the House of\nRepresentatives. The House impeached Hastings in 17 articles, the first of which\nwas in substance the bribery charge upon which he had been acquitted and 14\n104 See 1 Report o f the Senate Impeachment T n a l Committee. Hearings Before the Senate Impeachment Trial\nCommittee. 99th Cong. 22 -2 5 , 4 4-69, 108-10, 147-67, 170-86, 252-71 (1986) ("R eport of the Claiborne Senate\nImpeachment Trial C om m ittee\xe2\x80\x9d ) Claibome apparently argued that if the Senate were to accept the House managers\xe2\x80\x99\nview that they were bound to convict based on the jury verdict, that would violate the double jeopardy ban on\nmultiple punishments See Claibom e Tnal Proceedings, supra at 57, 60-61, 207-08 Apparently accepting that the\nSenate had resolved these matters in the Claibome case, Nixon did not squarely raise them In the course of opposing\na House m anagers\xe2\x80\x99 motion for the Senate to accept the entire record of his cnminal tnal, Nixon bnefly argued\nthat cnm inal prosecutions and impeachment tnals were \xe2\x80\x9c independent\xe2\x80\x9d proceedings. 1 Report of the Claibome Senate\nImpeachment T nal Committee, supra at 212, 213.\n105See, e.g., Claibom e T nal Proceedings, supra at 303-04 (statement of Sen Hatch), 312 (statement of Sen\nDixon), 314 (statement o f Sen. Specter), 340 (statement o f Sen Mitchell), 341-43 (statement of Sen. Mathias),\n352-53 (statement o f Sen Bumpers), Walter N ixon Tnal Proceedings, supra at 443-45 (statement of Sen Levin),\n446\xe2\x80\x9448 (statement o f Sen. Grassley), 452 (statement of Sen. Jeffords), 459 (statement of Sen Murkowski)\n106 Claibom e was convicted on three of four articles o f impeachment The three articles upon which he was con\xc2\xad\nvicted by the Senate all charged the income tax evasion upon which he had previously been convicted in the courts\nHe was acquitted on the fourth (article III), which charged him with the fact of having been convicted of tax evasion\nm court. See Claibom e T nal Proceedings, supra at 290-97.\nNixon was convicted on two impeachment articles and acquitted on a third The two upon which he was convicted\nby the Senate charged the lying before a grand jury upon which he had previously been convicted in court. See\nW alter Nixon Trial Proceedings, supra at 4 3 2 -3 4 ; 4B Report o f the Senate Impeachment Trial Committee on the\nArticles Against Judge Waller L Nixon, Jr Hearings Before the Senate Impeachment Trial Committee, 101st Cong\n469-77, 493 (1989). The third charged a series of false statements, including some made to the grand jury and\nsome made to a Justice Department attorney and an FBI agent. See Walter Nixon Trial Proceedings, supra at 6.\n\n150\n\n\x0cWhether a Former President May Be Indicted and Tried fo r the Same Offenses f o r Which He was\nImpeached by the House and Acquitted by the Senate\n\nof which alleged that he had repeatedly lied under oath at his criminal trial. In\n1989, the Senate tried and convicted Hastings on the first article and eight of\nthe ones charging lying at his criminal trial.\nThe Investigating Committee of the Eleventh Circuit Judicial Council, which\nconsisted of three circuit judges and two district court judges, briefly considered\nwhether Judge Hastings\xe2\x80\x99 acquittal should bar his impeachment by the House and\ntrial by the Senate (and thus the Committee\xe2\x80\x99s making of a recommendation of\nimpeachment). They concluded that it should not for three principal reasons.107\nFirst, the Committee thought it obvious that a conviction in the courts would not\nbar impeachment and legislative trial, and they could see no distinction between\nconvictions and acquittals in this respect. Second, they reasoned that \xe2\x80\x9c impeach\xc2\xad\nment does not serve the same purpose as a criminal prosecution. Impeachment\nis remedial and designed to protect the institution of government from corrupt\nconduct.\xe2\x80\x9d 108 Third, they noted that the standard of proof was higher in a criminal\nprosecution than in an impeachment trial.109\nThe House Judiciary Committee also found no double jeopardy bar. The Com\xc2\xad\nmittee took the view that \xe2\x80\x9c impeachment is not a criminal proceeding\xe2\x80\x9d because\nthe possible sanctions upon conviction are \xe2\x80\x9c remedial or prophylactic, rather than\ncriminal or punitive.\xe2\x80\x9d 110 The House adopted the articles by a vote of 413-3.111\nJust before the Senate took up the House\xe2\x80\x99s charges, Judge Hastings brought\nsuit against the Senate and some of its officers seeking to enjoin his impeachment\ntrial on double jeopardy grounds, among others. District Judge Gerhard Gesell\nrejected Hastings\xe2\x80\x99 double jeopardy contention and dismissed the action. Judge\nGesell reasoned as follows:\nImpeachment trials are sui generis: in several instances in the\nConstitution, impeachment is distinguished from criminal pro\xc2\xad\nceedings. The accused has no right to a jury, and the President may\nnot pardon a person convicted by impeachment. The Framers under\xc2\xad\nstood that impeachment trials were fundamentally political, which\nseems to indicate that impartiality \xe2\x80\x94 however much it has been\npresent and is to be desired \xe2\x80\x94 is not guaranteed. It is clear that\nthe federal rules of evidence do not apply in impeachment trials,\nand the Constitution itself does not require unanimity among the\nSenators sitting in judgment. Senators determine their own burdens\nof proof: they need not be persuaded beyond a reasonable doubt\nthat the defendant committed each and every element of every\n107 In the Matter o f the Impeachment Inquiry Concerning U.S. District Judge Alcee L Hastings. Hearings Before\nthe Subcommittee on Criminal Justice o f the House Comm on the Judiciary. 100th Cong app 1, at 347\xe2\x80\x9449 (1987).\n108 Id at 348\n109 The Committee also noted that it had considered evidence that had not been presented to the jury. Id at\n349.\n"\xc2\xb0H .R . Rep. No. 100-810, at 62 (1988)\n111 134 Cong Rec 20,221 (1988); see id. at 20,206-22\n\n151\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nArticle. Deviating from English precedent, the Framers sharply lim\xc2\xad\nited the remedies or punishment available upon conviction to\ndisqualification and removal from office . . . .\nH astings v. United States Senate, 716 F. Supp. 38, 41 (D.D.C. 1989). Judge Gesell\n\nread the Impeachment Judgment Clause as \xe2\x80\x9c acknowledging] separate and dif\xc2\xad\nferent roles for the executive\xe2\x80\x99s power of prosecution and the legislature\xe2\x80\x99s impeach\xc2\xad\nment powers. It is unthinkable that the executive branch could effectively prevent\nan impeachment by purporting to try a judge or that the judiciary could prevent\nan impeachment by accepting a plea. Rather, the executive and legislative\nbranches have different roles to play if a judge engages in criminal behavior.\xe2\x80\x9d\nId. at 42. The court of appeals affirmed on non-justiciability grounds rather than\nreaching the merits of any of Judge Hastings\xe2\x80\x99 contentions. Hastings v. United\nStates Senate, 887 F.2d 332 (D.C. Cir. 1989) (unpublished).\nJudge Hastings renewed his double jeopardy argument before the Senate in a\nmotion to dism iss.112 He made the expressio unius argument based on the\nImpeachment Judgment Clause, urging that the Clause \xe2\x80\x9c creates an express excep\xc2\xad\ntion for a \xe2\x80\x98party convicted\xe2\x80\x99 of an impeachable offense[, but] no exception for\na p a rty acquitted.\xe2\x80\x9d 113 He pointed out that Madison\xe2\x80\x99s proposed double jeopardy\nclause had included an exception for impeachments, which had been deleted by\nthe Senate. He noted the constitutional provisions suggesting that an impeachment\ntrial is a criminal proceeding, and he argued that the Mendoza-Martinez factors\npointed in the direction of treating impeachment trials as criminal proceedings.\nFinally, he argued that the \xe2\x80\x9c core policies\xe2\x80\x9d promoted by the double jeopardy rule\nfavored prohibiting Senate trials following acquittal in the courts. As the Supreme\nCourt stated in Green v. United States, 355 U.S. 184, 187-88 (1957), \xe2\x80\x9c [t]he\nunderlying idea, one that is deeply ingrained in at least the Anglo-American\nsystem of jurisprudence, is that the State with all its resources and power should\nnot be allowed to make repeated attempts to convict an individual for an alleged\noffense, thereby subjecting him to embarrassment, expense and ordeal and compel\xc2\xad\nling him to live in a continuing state of anxiety and insecurity, as well as\nenhancing the possibility that even though innocent he may be found guilty.\xe2\x80\x9d\nThe Senate denied Hastings\xe2\x80\x99 motion by a vote of 9 2 -1 .114 In statements inserted\ninto the record following the final vote to convict, several Senators addressed\nthe double jeopardy issue. They explained their judgment that trial by the Senate\nwas not a criminal proceeding and that it therefore did not constitute an instance\nof jeopardy within the meaning of the Double Jeopardy Clause.115\n112 Hastings M otions to Dismiss, supra at 48-66, Hastings T nal Proceedings, supra at 18-29\n113 Hastings Motions to Dismiss, supra at 49\n114 Hastings Trial Proceedings, supra at 55.\nl]5 ld. at 711 (statement o f Sen. Bingaman), 7 14-44 (statement of Sen Specter), 761 (statement of Sen Hatch),\n773 (statem ent o f Sen Dole), 776-77 (statement o f Sen Lieberman)\n\n152\n\n\x0cWhether a Former President May Be Indicted and Tried fo r the Same Offenses fo r Which He was\nImpeached by the House and Acquitted by the Senate\n\nThe Hastings impeachment trial provides additional support for the notion that\nan impeachment trial is not a jeopardy within the meaning of the Double Jeopardy\nClause and that an acquittal by the Senate should not block a criminal prosecution\nfor the same offenses.\nWe recognize that several arguments might be made to limit the significance\nof the Hastings case (and of the Claibome and Nixon cases) for the question\nwe are addressing, but we find none of them convincing.\nFirst, one might argue that trial in the Senate following acquittal in the courts\n(as in the Hastings case) is different from trial in the courts following acquittal\nin the Senate (the situation we are considering) because of the different standards\nof proof required in the two proceedings. A jury verdict of not guilty means the\nprosecution has failed to prove beyond a reasonable doubt that the defendant is\nguilty. The Senate might conclude that such a verdict presented no obstacle to\ntheir trial of the defendant on the same charges because, quite consistently with\nthe jury\xe2\x80\x99s verdict, they might conclude that the House managers had shown, under\nsome lower standard of proof (whether preponderance or clear and convincing),\nthat the defendant had committed the charged acts. The reverse sequence would\nstill be impermissible because a verdict of not guilty in the Senate under the lower\nstandard of proof would be inconsistent with a finding of guilty under the more\ndemanding beyond-a-reasonable doubt standard required in court.\nWe find this explanation of the significance of the Hastings case unconvincing\nfor two reasons. First, the argument concerns collateral estoppel \xe2\x80\x94 the principle\nthat an issue finally resolved in one proceeding as between two parties may not\nbe re-examined in a subsequent proceeding \xe2\x80\x94 not double jeopardy. It is true that\nthe resolution of a factual issue in favor of a defendant under the beyond-a-reasonable-doubt standard is no bar to consideration of the same issue under a more\nlenient standard of proof. Thus, for example, collateral estoppel is no bar to a\ncivil proceeding alleging that a defendant committed certain acts following\nacquittal of the same defendant on criminal charges requiring proof of the same\nacts. See, e.g., Helvering v. Mitchell, 303 U.S. 391, 397-98 (1938). But, as the\nSupreme Court has repeatedly explained, even where collateral estoppel creates\nno obstacle to a successive trial, double jeopardy still may. That is because it\nis the risk of criminal punishment, regardless of the form of the proceeding or\nthe standard of proof, that determines whether the two proceedings constitute\nimpermissible successive jeopardies. See, e.g., id. at 398\xe2\x80\x94405. Thus, for the Senate\nto try Judge Hastings after his criminal trial, it would not have been enough for\nthe members of that body to have concluded that the reduced standard of proof\nremoved any collateral estoppel problem. They would also have to have concluded\nthat trial before the Senate was not an instance of jeopardy.\nSecond, we find little, if any, evidence in the record of the Senate trial of Judge\nHastings suggesting that the Senators relied on this argument. Judge Hastings pre\xc2\xad\nsented the double jeopardy issue squarely to the Senate, which considered it both\n153\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nin a motion to dismiss and in its final judgm ent.116 Of the fifteen Senators who\ninserted statements in the record explaining their final votes, several addressed\nthe double jeopardy question, but none did so in terms of the difference in the\nstandards of proof.117\nOne might also try to cabin the significance of the Hastings case by contending\nthat the Senate\xe2\x80\x99s decision to try Judge Hastings turned on the judicial character\nof his office and that the decision therefore does not serve as a precedent for\nthe treatment of executive branch officials. The argument would go as follows.\nThe \xe2\x80\x9c good behavior\xe2\x80\x9d standard governing judicial tenure imposes standards of\npropriety, and of the appearance of propriety, on federal judges that do not apply\nto executive officials. Because of these particularly rigorous standards of behavior,\nconduct short of the criminal may nonetheless be outside the bounds of judicial\ngood behavior. Thus acquittal of serious crimes might still leave a judge open\nto fair condemnation as having deviated from the path of good behavior and thus\nas meriting removal from office.118\nEven if this argument for the significance of the good behavior standard were\ncorrect as a theoretical possibility, the records of the Hastings impeachment pro\xc2\xad\nceedings offer little, if any, evidence suggesting that the standard influenced the\nSenate\xe2\x80\x99s resolution of the double jeopardy issue it confronted.119\nFinally, regarding the Claibome and Nixon cases, one might argue that the Sen\xc2\xad\nate\xe2\x80\x99s decision to proceed rested not on a judgment that Senate trial did not con\xc2\xad\nstitute an instance of jeopardy but on a decision that the need to remove federal\njudges who had been convicted of felonies was so imperative that it outweighed\notherwise applicable double jeopardy principles. After all, federal judges, unlike\nfederal executive officials, have life tenure, so impeachment provides the only\nil6 See Hastings Motions to Dismiss, supra at 48-66; Hastings Tnal Proceedings, supra at 20-22, 38, 55; id.\nat 735-41 (statement o f Sen Specter), 772-73 (statement o f Sen. Dole); 776-77 (statement of Sen. Lieberman);\n799 (statement o f Sen. Kohl). For example, in his statement on the floor of the Senate opposing Judge Hastings\xe2\x80\x99s\nmotions to dismiss, House M anager Bryant stated.\nFinally, the Senate should not ignore the 200 years o f precedent establishing that Judge Hastings\xe2\x80\x99 double\njeopardy argument has no sound legal o r histoncal basis.\nR espondent\xe2\x80\x99s argument rests entirely on a single false premise that impeachment is somehow criminal\nin nature. Judge Hastings must convince you that an impeachment tnal is a criminal proceeding, for then\nand only then would double jeopardy even arguably apply. Impeachment, as all precedents indicate, is\nnot a cnm inal proceeding. Rather, the Constitution establishes \xe2\x80\x94 and the framers, the Congress and constitu\xc2\xad\ntional scholars have consistently concluded \xe2\x80\x94 that impeachment is a remedial proceeding designed to protect\nthe institutions o f Government and the A m encan people from abuse of the public trust In this country,\nimpeachment has never functioned as a cnminal process. Impeachment does not require an indictable\noffense as a basis for removal from office. Impeachment does not require proof beyond a reasonable doubt\nto establish the allegations. Impeachment does not call for trial by jury. Impeachment is not subject to\nPresidential pardon And above all, the purpose o f impeachment is not to punish an individual, but rather\nto preserve and protect our constitutional form o f Government\nId at 38\ni n See Hastings Trial Proceedings, supra at 735-41 (statement of Sen. Specter), id. at 772-73 (statement of Sen\nDole); id at 776-77 (statement o f Sen. Lieberman), id at 799 (statement of Sen Kohl)\n118See, e.g., Ritter Trial Proceedings, supra at 644-45 (statement of Sens Borah, LaFollette, Frazier, and\nShipstead), id. at 645-47 (statement of Sen. Thomas).\n119See Hastings T nal Proceedings, supra at 709-99 (Senators\xe2\x80\x99 statements), id at 758 (statement of Sen Grassley),\nid at 773 (statement o f Sen. Dole); see also id at 24 (statement o f counsel for Judge Hastings).\n\n154\n\n\x0cWhether a Former President May Be Indicted and Tried fo r the Same Offenses fo r Which He was\nImpeached by the House and Acquitted by the Senate\n\npolitical mechanism to remove them from office. If the Senate had proceeded\non that basis, we would expect to find some discussion of the dilemma involved.\nWe are aware of none in the record of those proceedings.\nThe three judicial impeachment trials of the 1980s support the conclusion that\nthe Senate does not view impeachment trials as instances of jeopardy within the\nmeaning of the Double Jeopardy Clause. The Hastings case, moreover, dem\xc2\xad\nonstrates that the Senate sees no difference between prior acquittal and prior\nconviction in this regard.\nIV. Conclusion\nWe conclude that the Constitution permits a former [\xe2\x80\x99resident to be criminally\nprosecuted for the same offenses for which he was impeached by the House and\nacquitted by the Senate while in office.\nAs the length of this memorandum indicates, we think the question is more\ncomplicated than it might first appear. In particular, we think that there is a reason\xc2\xad\nable argument that the Impeachment Judgment Clause should be read to bar\nprosecutions following acquittal by the Senate and that disqualification from fed\xc2\xad\neral office upon conviction by the Senate bears some of the markers of criminal\npunishment. Nonetheless, we think our conclusion accords with the text of the\nConstitution, reflects the founders\xe2\x80\x99 understanding of the new process of impeach\xc2\xad\nment they were creating, fits the Senate\xe2\x80\x99s understanding of its role as the impeach\xc2\xad\nment tribunal, and makes for a sensible and fair system of responding to the mis\xc2\xad\ndeeds of federal officials.\nRANDOLPH D. MOSS\nAssistant Attorney General\nOffice o f Legal Counsel\n\n155\n\n\x0c'