Trump Cannot Be Tried for January 6 Under Double Jeopardy Clause

Special Counsel Jack Smith accused former President Donald Trump of inflicting the January 6, 2021, Capitol riot by way of his “lies” concerning the 2020 presidential election. To that finish, he indicted Trump on Tuesday on 4 federal counts — one among which carries a possible dying penalty. But the indictment itself provides nothing new; it reads just like the report of the January 6 Committee, or the second impeachment resolution in opposition to Trump. It is barred, due to this fact, by the Constitution’s Double Jeopardy Clause.

The Double Jeopardy Clause, contained inside the Fifth Amendment, prevents any particular person from being tried twice in a federal courtroom for the identical crime. It doesn’t stop somebody from being tried for the identical crime in a state courtroom and a federal courtroom,  as a result of state and federal governments are thought-about to be “dual sovereigns.” But it applies to the federal stage — and whereas an impeachment trial within the Senate is just not a proper legal continuing, it has lots of the similar options as a federal legal trial.

One of the Constitution’s Impeachment Clauses, in Article I, Section 3, Clause 7, does say that an individual who has been convicted by the Senate in an impeachment trial can nonetheless face a federal legal trial: “the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.” It does not say that an individual who has been acquitted by the Senate can nonetheless be topic to the legal course of. Arguably, the Constitution supposed to guard an acquitted official.

That appears much more convincing when contemplating that the usual of proof within the Senate is decrease than in a legal courtroom — there isn’t a requirement of proof past an inexpensive doubt. As Alexander Hamilton himself noticed in Federalist 65, a Senate trial dangers of being determined by political elements. An acquittal there may be tougher to win than one in courtroom. Therefore Trump is protected by the Double Jeopardy Clause. The new indictment needs to be quashed earlier than trial, and the nation needs to be spared the drama.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the writer of the latest e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His latest guide, RED NOVEMBER, tells the story of the 2020 Democratic presidential major from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.

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