Former President Donald Trump's legal team has moved to dismiss his federal indictment in the District of Columbia for allegedly subverting the 2020 election. Some of his arguments came as no surprise. The prosecution, and everyone else, anticipated that he would argue that the First Amendment protected his conduct as political speech. But one of his arguments is more novel than that: Trump is arguing that his acquittal in the Senate at his impeachment trial bars a subsequent trial in criminal court for attempting to block the election of Joseph Biden.
Here's the gist of the argument: Trump's attorneys concede that the Constitution says that a "party convicted" by the Senate in an impeachment trial may thereafter be charged by "Indictment, Trial, Judgment and Punishment." But the Constitution says nothing about a party who is acquitted by the Senate at an impeachment trial. And because the Constitution specifies that only "the Party convicted" can be charged with a crime, Trump's lawyers argue that the language "presupposes that a President who is not convicted may not be subject to criminal prosecution."
It's wildly creative. It's borderline nuts. And yet, it just might work.
First, just because a criminal defense attorney's argument is a long shot doesn't mean it's improper. To the contrary, if a defendant doesn't raise defenses or objections to the indictment prior to trial, they generally waive those arguments, and can't raise them on appeal. The rules incentivize defense counsel throwing everything at the courtroom wall to see what sticks.
Trump's latest defense might not stick on the wall of the trial courtroom—but it might stick on the walls of an appellate courtroom. And this argument in particular might adhere to the walls of the Supreme Court.
The key lies in a legal principle called "expressio unius est exclusio alterius." It means "the expression of one is the exclusion of others." Imagine a restaurant with a sign that says "No Shoes, No Shirt, No Service." Does the omission of the word "pants" mean that someone can expect to be served while wearing shoes, a shirt and... nothing else? Probably not. According to the D.C. Circuit Court of Appeals, "if there are other reasonable explanations for an omission in a statute, expressio unius may not be a useful tool."
It's for reasons like this that expressio unius has been "widely criticized" by academics. But the canon has not been widely criticized at the United States Supreme Court. The Court has actually expanded the application of expressio unius in the Chief Justice Roberts era.
Judge Chutkan is certain to deny the defense's argument that an impeachment acquittal bars subsequent prosecution. But the Supreme Court might be willing to listen. The two questions will ultimately be: Did the Framers intentionally exclude the word "acquittal"? And if they did, does it mean something that isn't in the Constitution—that acquittal bars subsequent criminal prosecution?
The House of Representatives has brought impeachment proceedings 21 times in the history of the United States, mostly against federal judges. Just under half of those—nine—have resulted in outright acquittals. Impeachment was hardly an untested concept to the Framers. Alexander Hamilton acknowledged in Federalist No. 65 that Great Britain served as "the model from which [impeachment] has been borrowed." With all this evidence that the Framers knew what they were doing when they grafted impeachment into the Constitution, does the omission of the word "acquittal" mean more than just that—an omission?
As creative as this argument is, ultimately, there's a commonsense argument that will likely ultimately defeat the defense's "acquittal bar" theory. To start with, the protections of the Double Jeopardy Clause are riddled with exceptions. For example, a mistrial in a criminal trial doesn't bar subsequent prosecution for the same crime—even though the defendant has pretty clearly gone through a "trial." Another example: even if you've been tried in state criminal court, generally the federal government can bring you to trial in federal criminal court for the same conduct.
But there is no real difference between acquittals and convictions for Double Jeopardy purposes. If someone is convicted of a crime, the Double Jeopardy Clause of the Constitution bars a second prosecution for that crime. If someone is acquitted of a crime, the Double Jeopardy clause also bars subsequent prosecution.
If there is no distinction between acquittals and convictions in criminal cases, then there may be no distinction between impeachment acquittals and convictions.
It's an argument that Trump's defense will have to make at least three times: once before Judge Chutkan, once to the D.C. Court of Appeals, and then, in all likelihood, at the court where the argument has the best chance of sticking: the U.S. Supreme Court.
Danny Cevallos is an NBC News and MSNBC Legal Analyst and a criminal defense attorney.
The views expressed in this article are the writer's own.
Uncommon Knowledge
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
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