Occam’s Razor Isn’t That Dull

This is actually a really important point. There's a non-zero chance that the reason Jack Smith DIDN'T charge Trump w/insurrection is to avoid any double jeopardy claim.

So if you write a long piece purporting to do the legal analysis, maybe note that?

— emptywheel (@emptywheel) January 1, 2024

Impeachment is not a criminal proceeding; nor is it even a judicial one. It is not conducted according to the Federal Rules of Criminal Procedure, nor under the Federal Rules of Evidence. The Senate sets the rules for the proceedings and can conduct them as it sees fit. The only constitutional requirement is the number of Senators who have to vote for conviction. The outcome of the trial is not subject to judicial review. It can defy due process and equal protection of the law with impunity, since the outcome is political, not criminal. Which is why the impeachment clause specifies that:

Judgment 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, Judgment and Punishment, according to Law.

Which, in a nutshell, eliminates any argument for double jeopardy. The Fifth Amendment applies to criminal trials; impeachment is not a criminal trial.

It’s far more likely the Special Prosecutor didn’t charge Trump with sedition or seditious conspiracy because he had easier-to-prove charges readily at hand. Prosecutors aren’t obligated to prosecute the maximum case possible, only the maximum case they can prove. There was a lot of discussion about the seditious conspiracy charges DOJ did ultimately prove, because such charges are so rarely brought, and therefore considered difficult to establish. “We’ve never done it this way before” can actually be a powerful defense before a jury.

Turns out it wasn’t powerful enough.

Charging a former POTUS with crimes committed while in office is unprecedented. Charging him with the non-Constitutional version of treason (sedition), might well have been too heavy a lift. The prosecution is obligated to try the case it can win, not the case that would bring the greatest satisfaction to the defendant’s critics.

Did the Special Prosecutor’s office consider the double jeopardy impeachment defense? Probably, but I doubt they considered it a serious challenge, especially against the more serious obstacle of charging a former POTUS with treason (sedition) while he was in office. Is there a non-zero chance they didn’t consider it? Yes; but I’d guess it was very close to zero. I think the better argument is that they didn’t need to add to their burdens in order to do justice in this case. Seditious conspiracy (the likeliest charge) would necessarily include several co-conspirators, and it was noted at the time of filing that many potential defendants were specifically not charged…yet.

Meaning the likelier explanation was that Smith wanted a clean case against Trump alone that he could try before November, 2024. That was, IIRC, the conventional wisdom when the original criminal case was filed. I think that’s still the likeliest explanation.