In her recent rejection of some of Donald Trump’s attempts to evade criminal charges that were filed by Special Counsel Jack Smith on allegations of attempted election interference after the 2020 race, federal Judge Tanya Chutkan confronted the ex-president with the fact he’s not a king.
He’d been claiming immunity allegedly originating with his ex-office. “Nor is the Constitution silent on the question because its drafters and ratifiers assumed the President would enjoy the immunity Defendant claims. To the contrary, America’s founding generation envisioned a Chief Executive wholly different from the unaccountable, almost omnipotent rulers of other nations at that time,” Chutkan wrote. She then cited historical sources from the period showing evident intent on the part of the nation’s Founders to leave those who serve as president potentially subject to serious accountability such as criminal prosecution.
Trump’s team suggested that language in the Constitution outlining the relationship between impeachments, post-impeachment Senate convictions, and criminal proceedings mandated that he could only be charged if he’d also been impeached and convicted on the subject of the case, but Chutkan described this argued framework as simply untenable. She said the “logic certainly does not hold for former Presidents. That is because there is another way, besides impeachment and conviction, for a President to be removed from office and thus subjected to “the ordinary course of law,” Federalist No. 69 at 348: As in Defendant’s case, he may be voted out.”
Notably, the Trump team has argued elsewhere that the impeachment proceedings in the House that he did face should shield him from prosecution because of concerns about avoiding the legal concept known as double jeopardy. But that seems contradictory. Was the post-Capitol riot impeachment insufficient to reach the level of seriousness allowing for prosecution in these more recently refuted arguments and punitive enough to block prosecution under other ideas? Did it have weight or not?
Smith’s team has previously refuted the idea of the impeachment proceedings having been enough to foreclose the prospect of prosecution on grounds of double jeopardy. “The defendant cannot come close to showing that removal and disqualification from office is a criminal penalty. First, the historical evidence above showing that the framers intended that Congress could not impose the type of criminal sanctions following impeachment that the British Parliament could exact, see supra p. 50 n.19, indicates that the framers did not intend to create a criminal sanction,” the federal prosecutors said.
