Double jeopardy is a pretty fundamental element to the US criminal justice system, but does it apply to a US President (or other impeachable official) and the trial-like impeachment proceedings in Congress?

For example, if a US president faces impeachment hearings for some offense, but fails to be impeached by the House, could he or she face a new impeachment hearing on the same charges if, say, a mid-term election changes the majority party?

(Let's assume, for the sake of this question, that no new substantial evidence regarding those charges is discovered, just a change in congressional makeup.)

Along similar lines, what if he or she was impeached by the house, but failed to be removed/"convicted" by the Senate? Would a fresh impeachment by the House (on the same charges) be necessary? Or could a new Senate re-convene to hold new hearings on the prior impeachment, and simply re-cast their removal vote?

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    This sounds like a purely legal question, not really a politics quesiton. Might be better on law.se – David Grinberg Mar 22 '17 at 16:24
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    An impeachment trial is done by congress...not the courts/legal system. So I don't think the concept of double jeopardy would apply. – user1530 Mar 22 '17 at 16:27
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    "fails to be impeached by the House" The House vote is the equivalent of an indictment. Failing an indictment usually doesn't trigger jeopardy. Also consider the possibility that a failure in the Senate would be the equivalent of a hung jury, not a positive show of innocence. Finally, impeachment isn't a punishment. On a successful impeachment: "but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. " Punishment is separate from the removal. I doubt there's controlling precedent on this point. – Brythan Mar 22 '17 at 23:23
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    @DavidGrinberg The answer, primarily, is a political one and not a legal one, although the double jeopardy piece has a legal penumbra to it. An answer here probably makes more sense than in law. – ohwilleke Mar 23 '17 at 0:52
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    There are a lot of irrelevant comments here, and a very long winded answer below. Quite simply, the answer to the first question is "Yes." and the answer to the second is "No." ... not only can a new Congress impeach again on the same charges, but the same Congress can (and this is entirely a legal question, as it is about the wording of the U.S. Constitution) ... but unless condemning evidence shows up that wasn't available for the previous impeachment, there would be tremendous political blowback. – Jim Balter Mar 27 at 18:43

Double jeopardy applies to criminal charges. Impeachment is not a criminal charge and has no effect other than to cause someone holding a public office to be removed from that public office. It does not resolve the issues decided there in a subsequent civil or criminal case. It does not constitute a criminal conviction for the civil disabilities that would apply.

Also, a key question is "who decides" the questions posed in this question. For the most part, these are questions for the United States House of Representatives and the U.S. Senate, each of whom is the judge of its own proceedings.

Fundamentally, these are political questions which would be non-justiciable in the court system. There is no definitive "legal" answer to them.

One can make whatever argument you wishes to the House considering an impeachment, or to the Senate trying an impeachment, but ultimately, this would be about convincing representatives and senators to agree with your argument, not convincing a judge (although a judge does preside over a Presidential impeachment and senators might be inclined to defer to the rulings of that judge).

An appeal to the precedents of prior non-Presidential impeachment proceedings might be relevant and considered seriously by members of Congress in making their decisions. But, so far as I know, none of the circumstances you are asking about have ever actually come up, so there really are no precedents to guide members of Congress on these issues.

  • Correct. The fifth amendment says "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." Impeachment does not put an official at jeopardy of life or limb therefore there is no restriction on how many times he can be impeached for the same action. – Readin Dec 13 '17 at 7:11
  • ^ Um, the Fifth Amendment starts with "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger" -- the whole amendment obviously does not apply to impeachment. – Jim Balter Mar 27 at 18:47

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