In a week’s time, Donald Trump is set to present his defense before the DC Circuit, arguing that Judge Tanya Chutkan was incorrect in dismissing his claims of presidential immunity. The main crux of Trump’s assertion is that he is being persecuted for actions taken as part of his official duties. However, charges laid against Trump include obstructing Congress’s certification of Biden’s electoral victory and attempting to discard 20 million votes – acts that are considerably not part of any official presidential tasks.
What further adds intrigue to this appeal is Trump’s assertion that his impeachment in January 2021 by the House and his subsequent acquittal by the Senate already serve as a barrier to his current prosecution. Trump interprets the language in the Impeachment Clause – “the [impeached] Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law” – to infer that a party not convicted is forever immune from prosecution. He further maintains that impeachment executed in the House performs the role of a criminal trial, triggering jeopardy. This argument overlooks the specification in the Impeachment Clause that possible sanctions are limited to “removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States,” eliminating all criminal penalties.
Special Counsel Jack Smith deemed these arguments so preposterously flawed that he barely attempted to refute them during the trial. However, the continuous insistence by Republicans has compelled the Special Counsel to address these claims. Such rebuttals have seen references from diverse authorities like Alexander Hamilton and Senate Minority Leader Mitch McConnell support the legislative, rather than criminal nature of impeachment, signaling that jeopardy does not apply.
Trump was impeached for incitement, contrasting the obstruction of Congress charges he currently faces. However, these are clearly different charges despite Trump’s attempts to draw parallels. A wide range of stakeholders now wait to see how this case, one that manages to combine constitutional claims with aspects of political theatre, will unfold.
It’s worth noting an amicus brief by the Federalist Society that oddly pivots from its long-held stance when the subject was Bill Clinton, not Donald Trump. They now argue that special counsels are illegal as they are not nominated by the president and validated by the Senate, deviating from their view in earlier years.
You may track this case via the District Docket or the Circuit Docket.