There remains uncertainty about exactly how the Senate will conduct impeachment trial proceedings on the two articles of impeachment for President Trump adopted by the House of Representatives last month. But even with that uncertainty, there have been suggestions that, should the current Senate decide not to convict President Trump, if he were re-elected in 2020 he would be subject to (re)impeachment and (re)trial by a new Senate, because the double jeopardy protections that prevent retrial of criminal defendants do not apply to impeachment. In the space below, I analyze this suggestion.
To begin with, I think it is clear that impeachment proceedings are not criminal cases in which the Fifth and Sixth Amendments’ criminal procedural protections themselves apply. Article I of the Constitution provides that “[j]udgment in cases of impeachment shall extend no further than to removal from Office [and disqualification from future office] but the Party . . . shall . . . be liable and subject to . . . punishment according to law.” This provision to me makes clear that impeachment is not a mechanism for punishment the way the criminal law is; impeachment is a device to enable removal from office of someone who is unfit to continue. For that reason, the protections of the Fifth Amendment’s double jeopardy provision (which speaks of someone twice being placed in jeopardy of “life or limb”) or the Sixth Amendment’s right of accused persons to confront witnesses against them (which applies only in “criminal prosecutions) have no direct application to impeachment proceedings.
To be sure, some folks who may invoke these amendments may concede that they do not technically apply, but that we should borrow from their spirit to make impeachment proceedings more fair and just. Even if such analogies were apt—and I haven’t yet been convinced that they are—the right to confront would not be relevant during the House’s impeachment phase since that would be akin to a grand jury indictment (not a trial), and accused persons have no Sixth Amendment right to confront in the grand jury process. Nonetheless, whether or not the criminal procedural protections in the Constitution may be relevant to some aspects of the impeachment process by ambitious analogy, I’m generally skeptical about the constitutional propriety of conducting a redo of presidential impeachment proceedings after an intervening presidential election in which a President is reelected, for two reasons.
First, even though impeachment trials are not criminal, they are nevertheless, under the words of Article I, “cases” in which the Senate is empowered to “try” the matter and reach a “judgment” about the individual who is being “tried.” Indeed, it is precisely because the Senate is acting as a sort of judicial tribunal in a trial of impeachment that the federal courts (including the Supreme Court) should respect the judicial decisions made by the Senate and treat the results of impeachment trials as “political questions” ordinarily not susceptible to federal judicial review. Just as state and federal courts in the United States would respect adjudications made by courts in other countries under principles of res judicata (a Latin term meaning a matter has already been judged), so too they should respect judgments made by the Senate sitting as a judicial tribunal in impeachment cases. (This res judicata explanation for why impeachment trials are “political questions”—which focuses on the distinctively judicial character of the constitutional language empowering the Senate in impeachment proceedings—helps make political-question-doctrine less subjective and less capacious.)
Of course, even the law of res judicata has nuances and exceptions. When a court purports to resolve a matter but never really addresses the merits, then nothing has been adjudicated in a way that must be respected by future tribunals. This might explain some of what the Supreme Court said and did in the 1993 decision in Nixon v. United States, the most famous Court opinion involving an impeachment case. Judge Walter Nixon was a U.S. District Judge in Mississippi who had been criminally convicted—of making false statements to a federal grand jury—and sentenced to prison. Because, even after his conviction and criminal sentence, he continued to hold office as a federal judge, the House of Representatives adopted articles of impeachment against him and presented them to the Senate. In turn, the Senate, pursuant to its own impeachment rules (specifically, Senate Impeachment Rule XI), appointed a Senate committee to receive testimony and other evidence and to report to the whole Senate. After the committee had done its work and presented the full Senate with a report and transcript, the entire Senate cast their ballots, with more than two-thirds (the constitutional requirement for conviction) voting to convict Judge Nixon and remove him from judicial office. Thereafter, Nixon filed suit in federal district court, arguing that Senate Rule XI violated the Constitution inasmuch as Article I of the Constitution gives to the entire Senate, and not just a committee, the authority to “try” all impeachment cases. In other words, argued Nixon, because the entire Senate had not participated in the evidentiary hearings, the Senate had not conducted the trial that the impeachment provisions of the Constitution contemplate. After he lost in the lower courts, he sought review in the Supreme Court.
In rejecting Nixon’s challenge, the Court said: “Before we reach the merits of [Nixon’s] claim [that the Senate’s actions violate the Impeachment Trial Clause of Article I], we must decide whether it is ‘justiciable,’ that is, whether it is a claim that may be resolved by the [federal] courts. We conclude that it is not.” This sweeping language in Nixon, characterizing impeachment disputes as “[non]justiciable” in the federal courts, has led some observers to conclude that the case holds that judicial review of impeachment is simply never available.
But the Nixon Court didn’t completely live up to its own rhetoric about staying out of the merits of impeachment proceedings. While the Court said it had no power to look at the legality of Senate Rule XI, the Court then went on to say that Rule XI is completely consistent with what the word “try” in Article I of the Constitution means: “The word ‘try,’ both in 1787 and later, has considerably broader meanings than those to which [Mr. Nixon] would limit it. . . [W]e cannot say that the Framers used the word ‘try’ as an implied limitation on the method by which the Senate might proceed in trying impeachments.” That language is not the Court staying out; it is the Court stepping in and deciding that the Senate has not violated the (Court’s understanding of the) text of the Constitution. Saying the Senate has not violated the Constitution is not the same thing as saying the Court has no power to decide whether the Senate has violated the Constitution. The first is a ruling on the merits; only the latter is a true, pure invocation of political question doctrine.
The point was illustrated by a hypothetical posed by Justice Souter in an opinion concurring in the judgment in Nixon. He mused: “If the Senate were to act in a manner seriously threatening the integrity of its results, convicting, say, upon a coin-toss, or upon a summary determination that an officer of the United States was simply a ‘bad guy,’ . . . judicial interference might well be appropriate.”
Justice Souter’s approach (and that of other justices who concurred in the judgment) is not one in which the Court steadfastly stays out; it is one in which the Court leans in, but presumably gives a great deal of latitude to the Senate (and presumably the House too) on what is constitutionally permissible. Under this view, perhaps we should not think of political question doctrine in the impeachment setting as a yes-no determination of whether federal courts can review, but instead think of it more in terms of how much deference the Court will afford the political branches even if the Court does not stay out of the matter entirely. And even though Chief Justice Rehnquist’s majority opinion does not explicitly embrace Justice Souter’s approach—and instead purports to adopt a bright-line rule of no judicial review—the fact that the majority does opine on the meaning of the word “try,” and how the Senate’s definition of that word is a permissible one, suggests more agreement with Justice Souter than the majority acknowledges.
This language and analysis in Nixon might be consistent with a res judicata vision of political question doctrine in the impeachment setting. If the court of another country resolved disputes by flipping coins, or simply characterizing an accused as a bad guy, without ever going through a coherent process to make findings of particular culpability vel non, perhaps U.S. courts would not accord res judicata respect to those decisions.
But, bringing things back to President Trump’s impeachment, as long as the Senate determines either that the allegations embodied in the articles of impeachment are not sufficiently serious to warrant removal, or that the allegations (especially as regards impermissible motive by the President) lack adequate proof, then those determinations—whether or not supported by the weight of the evidence—might have to be respected a subsequent Senate, sitting as a judicial tribunal itself in a subsequent case of impeachment. Of course, if the Senate never takes up the current articles of impeachment before the 2020 elections, then nothing will have been adjudged, and no results would be res judicata. Or, if new important evidence is uncovered after 2020, that too might affect application of res judicata, since significant new evidence can sometimes cause courts to reopen things already adjudicated in non-impeachment cases.
Mention of the 2020 elections brings me to the second reason I have qualms about re-litigation of impeachment allegations after presidential reelection. As the Nixon Court noted (and as is obvious from the structure of the Constitution) impeachment powers were lodged in the House and Senate—and not the federal courts—precisely because removal of high-ranking executive or judicial officers is best done by a body with some electoral accountability; impeachment and potential removal of a President is a political as well as a quasi-judicial process. And if the voters of America, when informed of the facts and allegations, decide to reelect a President in spite of the evidence already on the table against him, then that is a judgment that ought to be afforded tremendous respect by a new Senate as well.