The arguments used to bolster the immunity claim — that, for example, his impeachment in the wake of the Capitol riot in 2021 meant that further prosecutions posed a “double jeopardy” threat — similarly prompted eye-rolling among experts. But the D.C. Circuit Court still needed to consider and parse those arguments, offering a detailed rebuttal to what Trump’s attorneys and allies had put forward.
In its ruling on the question, made public Tuesday morning, the court dismissed the idea that Trump’s impeachment was an obstruction to his criminal prosecution. In doing so, it also undercuts a common refrain about the impeachment from Trump — and dinged some of the senators who rose to Trump’s defense.
Trump’s attorneys had tried to block the D.C. prosecution by noting that his impeachment in the House after the Jan. 6, 2021, riots had been followed by a Senate trial that culminated in acquittal. The Fifth Amendment protects people from being tried twice for the same crime so, they argued, the former president couldn’t be criminally charged by the special counsel.
The court’s rejection of this argument was direct: “(1) An impeachment does not result in criminal punishments; and (2) the Indictment does not charge the same offense as the single count in the Impeachment Resolution.”
“Impeachment,” the ruling states, “is a political process that is instigated and overseen by the Congress.” This is true — and something that Trump has at times tried to gloss over. He likes to suggest that the impeachments he faced were solely a function of Democratic political action (as opposed to also being rooted in actual wrongdoing on his part) but then to treat his two acquittals as apolitical exonerations of his actions. They were not.
The ruling pointed this out.
“As a result of the political nature of impeachment proceedings, impeachment acquittals are often unrelated to factual innocence,” the court wrote.
“Former President Trump’s acquittal in his impeachment trial on the charge of inciting insurrection makes this point. The forty-three Senators who voted to acquit him relied on a variety of concerns, many of which had nothing to do with whether he committed the charged offense,” it said.
The ruling walks through the hodgepodge of reasons offered by the senators. Some were procedural, as with Sen. Todd Young’s (R-Ind.) complaint that the House rushed the impeachment itself. Some were political, such as Sen. Ron Johnson’s (R-Wis.) disparagement of the impeachment as “vindictive and divisive.” Thirty senators, the ruling noted, had objected to the impeachment because by the time the trial was conducted, Trump wasn’t president anymore — what the court dubbed “jurisdictional” objections.
Those same senators — including Senate Minority Leader Mitch McConnell (R-Ky.) — got another call-out in the ruling. Trump’s attorneys had argued that Trump couldn’t be criminally charged unless had first been impeached and convicted. If that were the case, the court wrote, and if those senators’ jurisdictional concerns were valid reasons not to convict, it would mean that no former president could ever be convicted of a crime committed in office. If you have to impeach before indicting, and you can’t impeach someone out of office, that’s that. Exoneration ad absurdum.
That “Impeachment is not a criminal process and cannot result in criminal punishment” by itself suggested that the Fifth Amendment’s protection against double jeopardy didn’t apply, the court argued. Trump “does not seriously contend otherwise,” the ruling continues, “and he does not explain why he believes that impeachment can implicate ‘double jeopardy principles’ when it does not involve criminal punishment.” Those scare quotes might justifiably be viewed as judicial eye-rolling.
There’s no mystery about why Republican senators declined to convict Trump during the impeachment trial in February 2021. Even by then, it was clear to Hill Republicans that their base was sticking with Trump — meaning that there was a political cost to be paid in trying to hold him to account. Some voted to convict Trump anyway, earning wrath from Trump and the base.
Then, trying to block his criminal indictment, Trump tried to use those senators as a shield a second time. His attorneys argued that the senators’ decisions were so weighted with importance that they were the equivalent of a judgment of a jury. So the court had little choice but to point out that, no, they weren’t. They were just politicians doing politics.