What’s the Story, morning glory?
In anticipation of this morning's oral argument in Trump v. United States: dueling interpretations of Justice Story and Hamilton as well as the significance of Ford’s pardon of Nixon
1. Interpreting the impeachment judgment clause
a. Has DOJ been misreading Justice Story for half a century?
In their filings before the Supreme Court, both the prosecutors1 and Trump’s attorneys2 continue to insist that Justice Story’s remarks on impeachment and double jeopardy3 in his Commentaries on the Constitution support their reading of the Impeachment Judgment Clause.4
Jack Goldsmith reads the Question Presented5 to exclude consideration of double jeopardy arguments.6 I think it is still up to the Justices whether “presidential immunity” includes what federal appellate courts have labeled “constitutional immunity from double jeopardy, ”7 a phrase Judge Chutkan quoted in her denial8 of Trump’s immunity arguments. (I do not believe any of Trump’s briefs ever cited that language.) The Special Counsel did not leave Story’s remarks on the subject unmentioned, but directed the Justices’ attention to them.9
In February, the appellate panel endorsed the reading of Story10 propounded by the Office of Legal Counsel in 197311 and 200012 and parroted by the Special Counsel. The 2000 OLC memorandum relegates to a footnote its admission that “Story’s reasoning does not seem to us to be entirely clear.”13
I submit that the defense has the more cogent reading of Story’s exegesis. In Section 780, Story wrote:
If the court of impeachments is merely to pronounce a sentence of removal from office and the other disabilities; then it is indispensable, that provision should be made, that the common tribunals of justice should be at liberty to entertain jurisdiction of the offence, for the purpose of inflicting, the common punishment applicable to unofficial offenders. Otherwise, it might be matter of extreme doubt, whether, consistently with the great maxim above mentioned, established for the security of the life and limbs and liberty of the citizen, a second trial for the same offence could be had, either after an acquittal, or a conviction in the court of impeachments.14 [emphasis added]
As the defense argues, Story considers that, without the impeachment judgment clause, “it might be a matter of extreme doubt, whether a second trial for the same offence could be had…after…a conviction” at impeachment. The impeachment judgment clause authorizes further proceedings against “the party convicted.” Since it is silent with respect to “the party acquitted,” the clause does nothing to disturb Story’s conclusion that the legality of an indictment after an impeachment acquittal “might be a matter of extreme doubt.” I am curious as to whether any Justice will question the Special Counsel on this subject or whether Trump’s lawyer will make it a point of emphasis.
b. Hamilton: sequence and substitution
There is also a quarrel over Hamilton’s conception of impeachment in the Federalist Papers. The defense sees Hamilton’s choice of words as establishing a clear and compulsory sequence such that an ordinary criminal trial can only follow conviction at impeachment.15 The Special Counsel disagrees.16
In Federalist No. 65, Hamilton wrote:
The punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law.
The passage still reads normally when we substitute “the party convicted” for “offender” in the first sentence and for “he” in the second sentence. If we try that with “the party acquitted,” non-sequiturs result, since the impeachment tribunal can not sentence or punish the party acquitted.
2. Significance of Ford’s pardon of Nixon
Pointing to an 18 U.S.C. § 371 count from a Watergate indictment17 in which Nixon was an unindicted co-conspirator, the Special Counsel treats Ford’s pardon of Nixon as definitive proof that former Presidents could be prosecuted for an official act.18 The defense retorts that the Nixon pardon can not be dispositive, citing media reporting indicating that “Nixon faced charges for private conduct, not just official acts.”19
In evaluating whether Nixon had criminal exposure for non-official acts, it may be profitable to consider the Watergate Grand Jury’s Draft Presentment against him, which alleged violation of the federal bribery statute.
Brief for the United States at 36 (p. 47 of pdf), Donald J. Trump v. United States, No. 23-939, 4/8/24: “And Justice Joseph Story never endorsed the view that criminal prosecution was available only following impeachment and conviction for the same conduct; indeed, he explicitly rejected it. See 2 Joseph Story, Commentaries on the Constitution of the United States §§ 780-781 (1833) (observing that the Constitution separated an impeachment trial, with its exclusive remedies of removal and disqualification, from a trial “in the common tribunals of justice” to ensure that “a second trial for the same offence could be had, either after an acquittal, or a conviction in the court of impeachments”).”
Petitioner’s Reply at 10 (p. 18 of pdf), Donald J. Trump v. United States, No. 23-939, 4/15/24: “Contrary to Respondent, Resp.Br.36, Sections 780-781 of Justice Story’s Commentaries reinforce this conclusion. Story reasoned that if the Clause had not specified that “the Party convicted” could be prosecuted, it would “be a matter of extreme doubt, whether … a second trial for the same offence could be had, either after an acquittal, or a conviction in the court of impeachments.” 3 STORY § 780 (emphasis added). Thus, on Story’s view, the Clause means that subsequent prosecution is not available, except as authorized by the “Party convicted” exception. Id. When Story says in the next section that the Constitution has “subjected the party to trial in the common criminal tribunals,” id. § 781 (emphasis added), “the party” refers to the Clause’s “Party convicted,” discussed immediately above.”
Impeachment Clauses: Joseph Story, Commentaries on the Constitution 2:§§ 758--69, 771--78, 780--803, 810--11, §§ 780-1: “§ 780. It is obvious, that, upon trials on impeachments, one of two courses must be adopted in case of a conviction; either for the court to proceed to pronounce a full and complete sentence of punishment for the offence according to the law of the land in like cases, pending in the common tribunals of justice, superadding the removal from office, and the consequent disabilities; or, to confine its sentence to the removal from office and other disabilities. If the former duty be a part of the constitutional functions of the court, then, in case of an acquittal, there cannot be another trial of the party for the same offence in the common tribunals of justice, because it is repugnant to the whole theory of the common law, that a man should be brought into jeopardy of life or limb more than once for the same offence. A plea of acquittal is, therefore, an absolute bar against any second prosecution for the same offence. If the court of impeachments is merely to pronounce a sentence of removal from office and the other disabilities; then it is indispensable, that provision should be made, that the common tribunals of justice should be at liberty to entertain jurisdiction of the offence, for the purpose of inflicting, the common punishment applicable to unofficial offenders. Otherwise, it might be matter of extreme doubt, whether, consistently with the great maxim above mentioned, established for the security of the life and limbs and liberty of the citizen, a second trial for the same offence could be had, either after an acquittal, or a conviction in the court of impeachments. And if no such second trial could be had, then the grossest official offenders might escape without any substantial punishment, even for crimes, which would subject their fellow citizens to capital punishment.
§ 781. The constitution, then, having provided, that judgment upon impeachments shall not extend further, than to removal from office, and disqualification to hold office, (which, however afflictive to an ambitious and elevated mind, would be scarcely felt, as a punishment, by the profligate and the base,) has wisely subjected the party to trial in the common criminal tribunals, for the purpose of receiving such punishment, as ordinarily belongs to the offence. Thus, for instance, treason, which by our laws is a capital offence, may receive its appropriate punishment; and bribery in high officers, which otherwise would be a mere disqualification from office, may have the measure of its infamy dealt out to it with the same unsparing severity, which attends upon other and humbler offenders.”
Constitution of the United States, Article I, Section 3, Clause 7: Impeachment Judgments: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
Question Presented, Donald J. Trump v. United States, No. 23-939: “…Petition Is Granted Limited To The Following Question: Whether And If So To What Extent Does A Former President Enjoy Presidential Immunity From Criminal Prosecution For Conduct Alleged To Involve Official Acts During His Tenure In Office…” [emphasis added]
The Core Issues in Trump v. United States: One Road Map, Jack Goldsmith, 4/22/24: “Also unconvincing is Trump’s reliance on the Impeachment Judgment Clause, Art. I, § 3, cl. 7, to “confirm” his broad immunity argument. I find no way to read the words of that clause, as Trump does, to make impeachment and conviction a prerequisite for criminal prosecution of a president. (Trump has a more powerful argument under the clause for a double jeopardy bar to criminal prosecution after impeachment and Senate acquittal, as this 2000 Office of Legal Counsel (OLC) opinion makes clear. But that issue is not before the Court. The courts below rejected the double jeopardy argument based on the clause, and Trump signaled that he planned to seek certiorari on it before the Court granted certiorari on its own, limited to the immunity issue. As best I can tell, Trump has until May 6 or so to file a petition for certiorari on the double jeopardy issue unless he seeks an extension.)”
Ferina v. United States, 340 F.2d 837, 838 (8th Cir. 1965): “Constitutional immunity from double jeopardy is a personal right which if not affirmatively pleaded by the defendant at the time of trial will be regarded as waived.”
United States v. Scott, 464 F.2d 832, 833 (D.C. Cir. 1972): “The constitutional immunity from double jeopardy is a personal right which, if not affirmatively pleaded by the defendant at the time of trial, will be regarded as waived.”
United States v. Trump, No. 23-257 (TSC), n.1 (D.D.C. Dec. 1, 2023): “The court therefore rules first on the Immunity Motion and the Constitutional Motion-in which Defendant asserts “constitutional immunity from double jeopardy,” United States v. Scott, 464 F.2d 832, 833 (D.C. Cir. 1972.”
Brief for the United States at 36 (p. 47 of pdf), Donald J. Trump v. United States, No. 23-939, 4/8/24
Opinion of the Court at 47-8, United States v. Donald J. Trump, No. 23-3228, 2/6/24: “In drafting the Impeachment Judgment Clause, to the extent that the Framers contemplated whether impeachment would have a preclusive effect on future criminal charges, the available evidence suggests that their intent was to ensure that a subsequent prosecution would not be barred. See OLC Double Jeopardy Memo at 122 (noting limited scope of discussion at the Constitutional Convention and ratifying conventions regarding the Impeachment Judgment Clause). Joseph Story explained that the Impeachment Judgment Clause removed doubt that “a second trial for the same offence could be had, either after an acquittal, or a conviction in the court of impeachments.” 2 Story, Commentaries § 780; id. § 781 (noting the Constitution “has wisely subjected the party to trial in the common criminal tribunals, for the purpose of receiving such punishment, as ordinarily belongs to the offence”). Story explained that without a criminal trial “the grossest official offenders might escape without any substantial punishment, even for crimes, which would subject their fellow citizens to capital punishment.” Id. § 780.”
Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution while in Office at 2 n.2, Office of Legal Counsel Memorandum, 9/24/1973: “We are using the tern “termination of the impeachment proceedings” rather than “removal by way of impeachment” in view of the statement in Story, Commentaries on the Constitution of the United States, vol I, sec. 782 [sic], quoted below, that criminal proceedings may be instituted, either after an acquittal or conviction in the court of impeachment.”
[Note: the numbering of Story’s sections is not identical across editions. The quotation from Section 782 on page 3 of the 1973 memorandum is in Section 780 of the edition cited by the parties in their briefs to the Supreme Court.]
Whether a Former President May Be Indicted and Tried for the Same Offenses for Which He was Impeached by the House and Acquitted by the Senate at 125-6, Office of Legal Counsel Memorandum Opinion for the Attorney General, 8/18/2000: “If Tucker thought the implication of the Impeachment Judgment Clause that Senate acquittals would be no bar to criminal prosecution was only possible, Justice Story seemed to take the point for granted in his 1833 Commentaries on the Constitution. Story observed that if the Senate had been given the authority to mete out regular criminal punishments, “ then, in case of an acquittal, there cannot be another trial of the party for the same offence in the common tribunals of justice” because the common law double jeopardy principle would forbid it.[43] Without the Impeachment Judgment Clause, Story contended, “it might be a matter of extreme doubt” whether, in light of the double jeopardy rule, “a second trial for the same offence could be had, either after an acquittal, or a conviction in the court of impeachments.”[44] In Story’s view, the Impeachment Judgment Clause removed any doubt about a double jeopardy bar in the case of Senate acquittals no less than in the case of Senate convictions.
[43] 2 Story’s Commentaries, supra at 250 (emphasis added)
[44] Id at 251 (emphasis added) Story’s reasoning does not seem to us to be entirely clear He does not directly address the significance of the phrase “the party convicted.” Although much of his discussion of the function of the final sentence of the Impeachment Judgment Clause is focused on, if not limited to, parties convicted by the Senate, his ultimate description of that sentence seems clearly to assume that it creates no bar to prosecution following acquittal by the Senate”
Petitioner’s Reply at 14 (p. 22 of pdf), Donald J. Trump v. United States, No. 23-939, 4/15/24: “Respondent also cites Alexander Hamilton, Resp.Br.14-15, but in The Federalist Nos. 65, 69, and 77, Hamilton repeatedly stated that the President can be prosecuted only “after[]” and “subsequent to” impeachment and conviction, and that criminal prosecution is a “consequence” of Senate conviction. Pet.Br.17-18 (quoting all three essays). Respondent quotes The Federalist No. 77, Resp.Br.14, but there, Hamilton wrote that the President is “at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law” (emphasis added).”
Brief for the United States at 14-15 (pp. 25-6 of pdf) and 35-6 (pp. 46-7 of pdf), Donald J. Trump v. United States, No. 23-939, 4/8/24: “Alexander Hamilton likewise confirmed that a President, unlike a King, would be “liable to prosecution and punishment in the ordinary course of law.” The Federalist No. 65, at 442; see id. at No. 69, at 463; id. at No. 77, at 520-521 (noting that the President is “at all times liable to impeachment, trial, [and] dismission from office” as well as “forfeiture of life and estate by subsequent prosecution in the common course of law”).” (14-15)
“Neither historical sources nor DOJ policy supports petitioner’s impeachment-first rule. Petitioner invokes (Br. 17-18, 33-34) three of Alexander Hamilton’s essays in The Federalist Nos. 65, 69, and 77 (Jacob E. Cook ed. 1961). None states that conviction by the Senate is a prerequisite to a former President’s criminal prosecution. Hamilton’s essays instead explained why the Supreme Court was not the proper body to serve as an impeachment court, id. No. 65, how a President differed from the British monarch, id. No. 69, and that, despite the President’s formidable powers, strong constitutional safeguards existed to protect the Nation, id. No. 77. Hamilton’s discussions therefore focused on the constitutional processes for remedying misconduct by a sitting President; they do not suggest that a former President could not be prosecuted unless he was first impeached and convicted.” (35-6)
Watergate Indictment, ¶ 12, 3/1/74
Answering Brief For The United States at 38 (p. 52 of pdf), United States v. Donald J. Trump, No. 23-3228, 12/30/23: “That President Nixon was named as an unindicted coconspirator in a plot to defraud the United States and obstruct justice, Nixon, 418 U.S. at 687, entirely refutes the defendant’s efforts (Br.27-28, 41) to distinguish that case as involving private conduct. See United States v. Haldeman, 559 F.2d 31, 121-22 (D.C. Cir. 1976) (en banc) (per curiam) (explaining that the offense conduct included efforts “to get the CIA to interfere with the Watergate investigation being conducted by the FBI” and “to obtain information concerning the investigation from the FBI and the Department of Justice”) (internal quotation marks omitted).”
Brief of the United States at 4-5 (pp. 15-16 of pdf), Donald J. Trump v. United States, No. 23-939, 4/8/24“The Framers never endorsed criminal immunity for a former President, and all Presidents from the Founding to the modern era have known that after leaving office they faced potential criminal liability for official acts. The closest historical analogue is President Nixon’s official conduct in Watergate, and his acceptance of a pardon implied his and President Ford’s recognition that a former President was subject to prosecution.”
Petitioner’s Reply at 15 (p. 23 of pdf), Donald J. Trump v. United States, No. 23-939, 4/15/24: “President Ford pardoned President Nixon, but President Nixon faced charges for private conduct, not just official acts. The Legal Aftermath: Citizen Nixon and the Law, TIME (Aug. 19, 1974), https://content.time.com/time/subscriber/article/0,330 09,942980-1,00.html (investigation of Nixon included “subornation of perjury, tax fraud, misprision of a felony, [and] misuse of Government funds for his private home”).”