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, 00-14

• Citation: 24 Op. O.L.C. 110
• Decision Date: 18 August 2000
• Docket Number: 00-14
• Parties: 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
• Court: Opinions of the Office of Legal Counsel of the Department of Justice

24 Op. O.L.C. 110

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

No. 00-14

United States Department of Justice

August 18, 2000

RANDOLPH D. MOSS Assistant Attorney General Office of Legal Counsel.

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

The Constitution permits a former President to be indicted and tried for the same offenses for which he was impeached by the House of Representatives and acquitted by the Senate.

AUGUST 18, 2000 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

We have been asked to consider 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.^[1] In 1973, in a district court filing addressing a related question in the criminal tax evasion investigation of Vice President Agnew, the Department took the position that acquittal by the Senate creates no bar to criminal prosecution. A 1973 Office of Legal Counsel ("OLC") memorandum discussing the same question adopted the same position. As far as we are aware, no court has ever ruled on this precise issue. During the impeachment of Judge Alcee Hastings in the late 1980s, though, a district court and both the House and Senate passed on the related question whether an acquittal in a criminal prosecution should bar an impeachment trial for the same offenses. Each of those bodies concluded that the Constitution permits an official to be tried by the Senate for offenses of which he has been acquitted in the courts. Although we recognize that there are reasonable arguments for the opposing view, on balance, and largely for some of the same structural reasons identified in the United States's filing in the Agnew case and the 1973 OLC memorandum, we think the better view is that a former President may be prosecuted for crimes of which he was acquitted by the Senate. Our conclusion concerning the constitutional permissibility of indictment and trial following a Senate acquittal is of course distinct from the question whether an indictment should be brought in any particular case.

This memorandum has three parts. First, we review the reasoning of the United States's filing in the Agnew case and of the 1973 OLC memorandum. Second, we consider in greater depth the arguments for and against the constitutional permissibility of criminal prosecution of officials for the same offenses of which they have been acquitted by the Senate. Third, we summarize and consider the significance of the Hastings impeachment process and of the Senate trials of two [ 111] other federal judges who were impeached and convicted during the 1980s following criminal prosecution.

I. The 1973 Justice Department Documents

A. The United States's Brief in the Grand Jury Investigation of Vice President Agnew

In 1972, the United States Attorney for the District of Maryland empaneled a grand jury to investigate criminal charges against Vice President Spiro Agnew. The Vice President filed a motion with the district court supervising the grand jury seeking to enjoin the grand jury from investigating or indicting him, claiming that his office gave him immunity from indictment and criminal trial. The United States filed a brief, signed by Solicitor General Robert Bork, opposing the Vice President's motion. The briefs central contention was that "all civil officers of the United States other than the President are amenable to the federal criminal process either before or after the conclusion of impeachment proceedings." Memorandum for the United States Concerning the Vice President's Claim of Constitutional Immunity, In Re Proceedings of the Grand Jury Impaneled December 5, 1972: Application of Spiro T. Agnew, Vice President of the United States, Civ. No. 73-965 (D. Md. filed Oct. 5, 1973) at 3 ("Agnew Brief).

One of the arguments the brief addresses is the contention that the Impeachment Judgment Clause, Article I, Section 3, Clause 7 of the Constitution dictates that impeachment must precede indictment. That clause provides:

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.

In response to the argument that impeachment must precede prosecution, the brief first states, "As it applies to civil officers other than the President, the principal operative effect of Article I, Section 3, Clause 7, is solely the preclusion of pleas of double jeopardy in criminal prosecutions following convictions upon impeachments." Agnew Brief at 7. It goes on, however, to contend that the clause allows criminal prosecution upon acquittal by the Senate as well. See Id. at 8.

It then provides, though in very summary form, five arguments for that conclusion. First, impeachment and trial by the Senate on the one hand, and prosecution in the courts, on the other "serve different ends." Id. Although the brief does not actually spell out those different ends, they seem to be protection of our institutions of government from corrupt or incompetent officials, on the one hand, and punishment of those individuals, on the other. The only illustration the brief [ 112] offers is that "a civil officer found not guilty by reason of insanity in a criminal trial could certainly be impeached nonetheless." Id. at 9. In a related vein, the brief argues that trial on impeachment is a civil proceeding akin to deportation rather than a criminal proceeding. Id. at 10 n.**. Second, the brief points out that impeachment trials "may sometimes be influenced by political passions and interests that would be rigorously excluded from a criminal trial." Id. at 9. Third, an acquittal by the Senate will often rest on a determination by at least a third of the Senate that the conduct alleged, though proven, does not amount to a high crime or misdemeanor. Such a judgment in no way reflects a determination that the conduct is not criminal in the ordinary sense. Id. Fourth, if the scope of the Impeachment Judgment Clause were restricted to convicted parties, "the failure of the House to vote an impeachment, or the failure of the impeachment in the Senate, would confer upon the civil officer accused complete and — were the statute of limitations permitted to run — permanent immunity from criminal prosecution however plain his guilt." Id. at 9-10.^[2] Fifth, such a view would give Congress an indirect power of pardon — via impeachment and acquittal — even though the Constitution vests the President alone with the power to pardon. Id. at 10.

B. The 1973 OLC Memorandum

In 1973, this Office prepared a memorandum on the amenability of the President, the Vice President, and other civil officers to federal criminal prosecution while in office. The memorandum's central conclusion was that all federal officers and the Vice President, but not the President, are amenable to federal prosecution while in office. The memorandum did not discuss at any length the question whether a former President who has been acquitted by the Senate may be indicted and criminally tried. It did spend considerable time, however, refuting the notion that the Impeachment Judgment Clause required officers to be impeached by the House and tried by the Senate before they may be criminally prosecuted. Instead, the memorandum stated, "[t]he purpose of this clause ... is to permit criminal prosecution in spite of the prior adjudication by the Senate, i.e., to forestall a double jeopardy argument." Memorandum from Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel, Re: Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution While in Office [ 113] at 3 (Sept. 24, 1973) ("1973 OLC Memo"). In support of that claim, the memorandum cited a passage from the argument made by Luther Martin in his role as defense counsel in the impeachment trial of Justice Chase in 1805^[3] and quoted a passage from Justice Joseph Story's 1833 Commentaries on the Constitution.^[4]Story, the memorandum suggested, took the position that neither conviction nor acquittal by the Senate would bar a criminal prosecution. Id. at 2 n.2. The reasoning supporting our embrace of the position we attributed to Story was contained in a single sentence in a footnote: "The conclusion that acquittal by the Senate does not bar criminal prosecution follows from the consideration that such an acquittal may be based ... on jurisdictional grounds, e.g., that the defendant is not an officer of the United States in the constitutional sense, or on discretionary grounds, e.g., that the defendant no longer is an officer of the United States and unlikely to be reappointed or reelected, or on grounds which are partly jurisdictional and partly substantive, e.g., that the offense was not of an impeachable nature." Id. The memorandum thus rested its conclusion on a somewhat elaborated version of the third argument made in the United States's brief in the Agnew case.

II. The Arguments Considered in Greater Depth

There appear to be two possible bases in the Constitution for the claim that a former President who was acquitted by the Senate while he was in office may not be criminally prosecuted for the same offenses: the Impeachment Judgment Clause and the Double Jeopardy Clause. We will consider each in turn.

A. The Impeachment Judgment Clause [ 114]

1. The Argument That Senate Acquittal Bars Subsequent Prosecution

The Constitution itself...