All of this talk is in reference to U.S. Chief Executives.
I’m curious as to whether any other Head of State has been tried for a crime while he/she was still in office.
Quartz
December 17, 2006, 6:18pm
23
Gfactor:
If impeached and acquitted [by the Senate], which is what I meant, anyway, the President remains in office **and ** subject to prosecution, at least after he leaves office. So there is a future prosecution to be avoided by the pardon.
Umm… doesn’t Double Jeopardy apply there? You can’t be prosecuted twice.
Gfactor
December 17, 2006, 6:25pm
24
Short answer: Not according to the Office of Legal Counsel.
a reference from the staff report:
“Whether a Former President May Be Indicted and Tried for the Same Offenses for Which He Was Impeached by the House and Acquitted by the Senate,” Op. O.L.C. (2000): http://www.usdoj.gov/olc/expresident.htm
There are some other interesting permutations here. What if the president is impeached but then acquitted by the Senate? Can the president be prosecuted after the regular four-year term expires? The Office of Legal Counsel contended that he could be in a 2000 memorandum. A related problem arose in the case of Federal District Judge Alcee Hastings, who was tried and acquitted of a series of offenses. When the Federal Judicial Counsel recommended his impeachment, Hastings objected on double jeopardy grounds, but his claim was rejected by the legislative branch and by his fellow judges.
By the time President Bill Clinton was impeached and acquitted at the end of the 1990s, there seemed little question that he remained liable to prosecution after his term expired. When USA Today asked about the effect of the impeachment proceedings on post-term prosecution of Clinton, Independent Counsel Robert Ray said: “Sure, it’s a factor. Is it a dispositive factor? No. Is any one factor a dispositive factor? No. There are lots of factors that go into whether to bring a case.” The former president reached an agreement with Ray – he gave up his law license for five years, among other things – and in exchange Ray agreed not to prosecute.
No, the Constitution says in so many words:
“Judgement in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgement and punishment, according to law.”
Gfactor
December 17, 2006, 7:36pm
26
No, the Constitution says in so many words:
“Judgement in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgement and punishment, according to law.”
Actually, the Impeachment Judgments Clause, on its face, deals only with convictions. Based on its mention of convictions and neglect of acquittals, some have argued that the doctrine of expressio unius requires a double jeopardy-like bar on prosecutions of those acquitted by the Senate. http://www.usdoj.gov/olc/expresident.htm#back_5
There is a detailed discussion of the issues in the section of the OLC memo I just linked to. While the OLC ultimately found arguments based on the Impeachment Judgments Clause and Double Jeopardy Clause unconvincing, it noted that it was a closer case one might think on first consideration:
As the length of this memorandum indicates, we think the question is more complicated than it might first appear. In particular, we think that there is a reasonable argument that the Impeachment Judgment Clause should be read to bar prosecutions following acquittal by the Senate and that disqualification from federal office upon conviction by the Senate bears some of the markers of criminal punishment. Nonetheless, we think our conclusion accords with the text of the Constitution, reflects the founders’ understanding of the new process of impeachment they were creating, fits the Senate’s understanding of its role as the impeachment tribunal, and makes for a sensible and fair system of responding to the misdeeds of federal officials.
http://www.usdoj.gov/olc/expresident.htm#back_119