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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 – Reinstate Monica 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
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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.

N.B. "Impeachment" in sensu stricto is just the House indictment-like activity. But, the use of the term to refer to the entire process through a U.S. Senate conviction is so common place even among political scientists and lawyers that it cannot be called truly incorrect.

  • 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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    @JimBalter That doesn't necessarily make it a stupid question. Many provisions of the law and the U.S. Constitution don't actually mean what a naive reading of them would tend to suggest. For example, the 11th Amendment to the U.S. Constitution does not mean what it literally says. – ohwilleke Oct 10 at 22:36
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    @JimBalter My point is that while the 5th Amendment naively seems irrelevant, and most legal scholars would conclude that it is irrelevant, the determination that it is irrelevant is far from obvious. There are many occasions upon which provisions of the constitution that superficially seem even more obviously irrelevant have been given effect in interpreting other provisions of the constitution. – ohwilleke Oct 13 at 2:24
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    @Senex "Impeachment" in sensu stricto is just the House indictment-like activity. But, the use of the term to refer to the entire process through a U.S. Senate conviction is so common place even among political scientists and lawyers that it cannot be called truly incorrect. – ohwilleke Oct 16 at 21:38
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The spirit of the Double Jeopardy Clause would seem to be violated if: (1) a president was alleged to have committed a "high crime or misdemeanor;" (2) was impeached by a majority Democratic House; (3) the impeachment failed to gain enough votes in a majority Republican Senate; and (3) afterwards, the president was impeached again, by the same House and on the same allegations but based "new evidence." Because Impeachment is not a criminal proceeding, is solely a political matter and the exclusive domain of Congress, an appeal to the Supreme Court would be futile. However, since under the Constitution the rules of impeahment are the sole providence of Congress, the members could vote to apply the "Double Jeopardy Clause" to impeachment proceedings. The President would not be a factor here. No signature of affirmation, or veto, like in passing legislation. It is unlikely any Congress would vote to limit Congress' abilty to impeach and remove a president believed by many to be corrupt.

  • I'm having a hard time following this answer. Could you edit it to break it up into separate thoughts/paragraphs? Also, while the question was most likely prompted by Trump, it is over two years old and asking about the general case, so answers should be generic as well. It could equally be asking whether the Republican House could re-impeach Clinton after the Republican Senate failed to convict. – Bobson Oct 16 at 21:59
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As others have said, Impeachment is not a criminal matter, but it's important to align what stage in the Criminal Justice System the matter aligns with and where Double Jeopardy would apply. But first, let's get the simplest answer out of the way.

Double Jeopardy usually applies only in criminal matters and only then at the trial stage (Once the Jury is empaneled or seated) and only prevents the prosecution from initiating the appellant process. Since there is little in the ways of appeals to be made in Impeachment (Nixon v. United States... though if that's the SCOTUS case about President Nixon's tapes, then I cited the wrong case). So there is no Double Jeopardy to be stated.

Your scenario that the current House doesn't vote to Impeach is the equivalent of the Prosecutor chosing not to prosecute a case presented to their office, so if Double Jeopardy were to apply, it's still beyond this point and not a violation of Double Jeopardy. Impeachment means that the House has decided to file charges (called Articles of Impeachment (AoI)) and the trial in the senate is now to be heard. Impeachment is not the actual removal of an officer from public office. Bill Clinton was Impeached but was not convicted (and thus removed. AoI doesn't even bar you from holding office again... that comes later with a seperate act of the Senate. At least one member in the House was impeached and convicted, but not barred from holding federal office (he was a Federal Judge prior to impeachment).

So if we did this as Law & Order: Impeachment, your still in the first half of the show with the police who investigate crime. We're not yet to the district attorney who prosecutes it. (DOING! DOING!)

  • You're citing the correct case. Nixon v. United States (1993) was about Walter Nixon's impeachment (it also was relevant to Alcee Hastings's impeachment as a federal ruling for him was stayed until the Nixon case was decided) and ultimately decided that the federal courts have no jurisdiction over the Senate when it comes to questions of impeachment. – Nelson Oct 16 at 13:56

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