Shifty Schiff Cannot Re-Impeach for Anything Prior to Jan. 15, 2020

Even before the ink had dried on their impeachment articles, the Democrats responsible for the House's foolhardy vote on December 8, 2019 were already talking Impeachment 2 in case the original didn't work out.

The Senate's vote to acquit the president of the House's desperately crafted impeachment charges appears to have made the Trump-haters even a little more hysterical and irrational.

Rep. Adam Schiff and company have pivoted back to their Trump/Russia collusion/obstruction fantasies.  In truth, they never left them.

We are approaching four years now since the powerful criminal and intelligence agencies of the federal government began earnestly (and illegally) searching for Trump/Russia collusion.  With their unlimited resources and Robert Mueller's 19 prosecutors and $35 million, one might reasonably conclude that if illegality on Trump's part existed, they would have found it by now.

Nevertheless, the undynamic duo of Adam Schiff and Jerry Nadler believe that the evidence for Impeachment 2 is right there.  It's been there all along, but somehow everyone has missed it.  If Mueller can be subpoenaed to testify, surely, he will remember what his team of Democrat Party donors forgot to put in the report.  If Schiff and Nadler can just get the legally protected grand jury transcripts from the Mueller investigation, the Trump collusion will be right there in writing for them to construe.

As The Hill reports: "Democrats say the additional information would provide a more complete picture of Mueller's findings related to Trump's alleged obstruction of the special counsel as well as his 2016 campaign's interactions with Russian government officials."

The House Dems are suing to get the sacrosanct grand jury records.

On March 3, 2020, the D.C. Circuit Court of Appeals upheld the District Court's ruling allowing the House Democrats to receive the 448-page Mueller report without grand jury privacy redactions.

The Justice Department then petitioned the United States Supreme Court requesting a stay for appeal.  On May 20, 2020, the High Court granted the stay, and the Justice Department filed its petition for a writ of certiorari on June 1.  On Thursday, July 2, the High Court extended the stay, effectively preventing the House Democrats from getting the Mueller grand jury material before the November 3 election.  The Court's decision on the merits is expected by the end of June 2021.

The Legal Issues

The question of whether the House can re-impeach President Trump for conduct that occurred antecedent to the Senate acquittal on January 15, 2020 was not addressed by the Justice Department in its recent petition for certiorari.

The lone dissenter in the three-judge D.C. Court of Appeals decision was Judge Neomi Rao, who writes:

In the months following the Committee's [House Dems'] initial petition [for grand jury records, filed July 26, 2019], the House passed two articles of impeachment and the Senate conducted an impeachment trial and voted to acquit President Donald J. Trump.  In light of these circumstances, I would remand to the district court to consider in the first instance whether the Committee can continue to demonstrate that its inquiry is preliminary to an impeachment proceeding and that it has a 'particularized need' for disclosure of the grand jury records.

In view of the Senate acquittal, the judge also notes that the House Committee lost its legal standing to continue to ask for the grand jury transcripts. Judge Rao continues:

A reasonable observer might wonder why we are deciding this case at this time. After all, the Committee sought these [grand jury] materials preliminary to an impeachment proceeding and the Senate impeachment trial has concluded. Why is this controversy not moot? The majority simply turns a blind eye to these very public events and the parties have not submitted any additional briefs[.]

The Justice Department has noted that another impeachment of President Trump is speculative, and Judge Rao did not address whether the House Committee may legitimately begin another impeachment investigation for the same time period and then obtain the grand jury material.

The broader legal argument, yet to be raised, is that the acquittal in the Senate bars the House Democrats from proceeding with another impeachment for conduct prior to the Senate acquittal.

The time-bar argument is relevant when quasi-criminal accountability charges are brought.  In context, the prosecution has a duty to bring its full case.  It cannot bring its case, suffer a defeat, and then say let's try again for conduct involving the same time period for which the accused has been tried — in this case from January 20, 2017 to January 15, 2020.  The day of inauguration to the day of the acquittal (or for any period prior to acquittal if you believe presidents can be impeached for conduct prior to assuming office).

With criminal charges, lawyers focus on acts and elements of offenses.  With quasi-criminal prosecution, often the charges do not contain specific elements.  For example, President Trump was impeached (charged) by the House with "Abuse of Power" and "Obstruction of Congress."  The elements of the offenses are whatever the House says they are until the Senate disagrees.  Because of the subjectivity factor, many constitutional scholars including Harvard Law professor emeritus Alan M. Dershowitz argue that presidential impeachment requires actual criminal offenses with specified elements.  Otherwise, a president may be impeached and removed for partisan political motives irrespective of the Constitution.

Preferably, presidents should only be impeached in accordance with what the Constitution requires: crimes relating to treason and bribery.

In consideration of the current political climate and for the sake of argument, let's assume presidents may legally be impeached for alleged bad behavior to a degree at which a political body in the House deems violative of the Constitution.

Presidents presiding in the United States under that system are effectively on a type of probation with unspecified good behavior.  The House of Representatives assumes the roles of the president's probation officer and prosecutor and may bring charges for whatever it believes constitutes good cause.

In an actual probation violation case, there is a term of probation.  Let's say the term is four years.  If criminal or quantified bad behavior is discovered within the term of probation the person on probation may be charged and tried so long as the charges are brought within the term of probation.  If the probationer violates a condition of good behavior during the probation term but the violation is not discovered by the prosecution until after the term, the probationer may not be charged with a probation violation.

Likewise, if the prosecutor brings a violation of good behavior case two years into a four-year term and after a hearing, the court dismisses the violation charges, the prosecutor may not charge the probationer again for some other alleged bad behavior within that same two-year period.  That period of time has been litigated.  The prosecution had the duty to gather its evidence and bring its full case.

Complaining afterward that he would have been convicted if we'd had better evidence, is not convincing.

Application of the principles of double jeopardy, by necessity, differs between criminal and quasi-criminal prosecutions.  Jeopardy involves a specific crime and attaches with trial for the crime in criminal cases.  But in context of good behavior violation trials, it attaches with trial for bad behavior within the relevant time period.

The counter to the argument that the House Democrats may not re-impeach the president for behavior that occurred prior to January 15, 2020 will likely be that they didn't have grand jury or other witness testimony at the time.  The response to that should be that they had a duty to get whatever they thought was necessary before rushing to draw up articles and voting on something as momentous and weighty as presidential impeachment.

They took their bite at the apple for that time period.

Presidential impeachment is an extraordinary remedy that should be used rarely.  It should never be used as a political weapon of the majority in Congress to damage or remove the head of state, whose tenure represents the will of the people.  President Bill Clinton's defense attorney, Charles Ruff, said it carefully: "The only conduct that merits the drastic remedy of impeachment is that which subverts our system of government or renders the president unfit or unable to govern."

If House Democrats are insistent upon pursuing Impeachment 2, they should limit their inquiries to conduct after January 15, 2020.  If Trump is re-elected, there is little doubt that they will be aroused with fresh animus and creativity to impeach the president for any number of fanciful theories — if they still hold the House.

Monte Kuligowski is an attorney whose legal scholarship has been published in law journals by the law schools at the University of Virginia, Duke University, the University of Richmond, Samford University, and St. John's University.

Image: Gage Skidmore via Flickr.

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