The Senate overwhelmingly pronounced President Trump not guilty today on both articles of impeachment. The final vote for acquittal fell far short of the two-thirds majority required to convict the president.
This was the expected outcome, but still Washington’s partisan Democrats are trying their best to spin this verdict as something less than full exoneration and final judgment on the merits of the case itself. Further, Rep. Adam Schiff, D-Calif., and other Democrats are now suggesting they will continue the investigation. This is nothing short of presidential harassment.
As I wrote previously, the Senate is the constitutionally mandated sole arbiter of articles of impeachment and their verdict is complete exoneration. Their judgment is final. Now, regardless of the Trump haters’ ire (and I include Sen. Mitt Romney, R-Utah, in that), their sham has failed, and the Constitution is very clear that they don’t get a second bite at the apple.
In American law, we have a principle called res judicata, or claim preclusion. This is part of due process, specifically textually protected in the Seventh Amendment, and is Latin for “a matter already judged.” The Seventh Amendment to the U.S. Constitution provides in part, “no fact tried by a jury, shall be otherwise re-examined in any Court of the United States.” The Senate has served as the constitutionally designated jury for cases of impeachment and they have tried the facts.
Claim preclusion is the legal doctrine that prevents relitigation of a claim that has already been judged. Substantively, this is to prevent the losing party from simply trying to find a different jury or different judge to rule differently. Litigation fairly requires finality, and part of justice in our law is to ensure that both parties have a final outcome. This also prevents duplicitous or contradictory judgments.
This isn’t just about the constitutional prohibition against double jeopardy and isn’t limited to criminal actions, but is a legal concept that applies to every claim in a court context, or non-traditional forums, like the Senate in this instance.
The president may fairly raise a defense of res judicata or claim preclusion if the Democrats continue to press investigation on this same matter after acquittal. The general rule is applicable here because the Senate, although a non-traditional forum, has still tried the merits of the two articles of impeachment. The House has now already prosecuted their impeachment against the president for the entire scope of the circumstances surrounding Ukraine aid temporary being withheld, the request into corruption investigations, and the alleged quid pro quo.
The House can’t even seek a different remedy. This is what due process, trial, and acquittal mean. Full exoneration means that a final judgment has been rendered. President Trump is exonerated forever.
This also is common sense, because otherwise no defendant would ever receive a final judgment and trials would be pointless. In America, we do not relitigate every issue because one party doesn’t prefer the outcome. And it works both ways. Defendants found guilty (or liable in a civil context) cannot demand a new trial simply on the basis that they don’t like the jury’s verdict. In some instances, new trials are commenced when a defendant successfully appeals, but the Constitution provides no appellate mechanism for trials of impeachment; moreover, it is a longstanding legal principle that jury verdicts of acquittal cannot be appealed.
Importantly, this is because the prohibition against double jeopardy in the Fifth Amendment requires that in instances of jury verdicts of acquittal, which is what we have in the Senate, the prosecutors, or the House managers, cannot appeal the acquittal nor institute any further proceedings against President Trump. While the Senate is not a traditional criminal forum, the prohibition against double jeopardy should still apply, as the Fifth Amendment text is fairly applied to cases of impeachment as a quasi-criminal proceeding.
Taken together, the Fifth and Seventh Amendments prohibit the House from any further proceedings against President Trump for the matters already decided by the Senate acquittal today.
If the Democrats choose to believe they are above the law, perhaps it’s time for the Supreme Court to step in and clarify the constitutional limits of impeachment and the legal principles that apply. Impeachment was not ever designed constitutionally as a purely political process and certainly was not designed to be weaponized by a partisan majority only seeking their own political advantage.