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Jack Smith's indictments of President Trump are ill-founded and unconstitutional, judicial clerk explains why

By bellecarter // 2023-08-28

A law clerk recently wrote an article in the American Mind, the official publication of the think tank Claremont Institute, explaining why Special Counsel Jack Smith's indictments of former President Donald Trump are unconstitutional and unsubstantiated. According to Paul Ingrassia, a judicial clerk at the McBride Law Firm, a graduate of Cornell Law School, and one of the Board of Advisors of the New York Young Republicans Club, Smith's claims are ill-founded to the extent they have no merit at all. The two-time Claremont Fellow cited Article II, Section 1 of the Constitution: "The executive Power shall be vested in a President of the United States of America." Therefore, he said, Trump had this power that provides certain privileges and executive immunities. "Among these privileges are those expressly delineated in the Constitution itself. The impeachment process, for example, as stated in Article II, Sec. 4, requires that for all 'high crimes and misdemeanors,' the president 'shall be removed from Office,'" he said, highlighting that the highest law of the land lays out a process by which presidents are to be prosecuted by impeachment only and not traditional prosecution and attendant punishments like incarceration. He added that this is because the POTUS exposes himself to outsized publicity, controversy, and risk as a result of his office. Therefore, the punitive measures that uniquely attach to the executive officeholder are consonant with the duties and powers of the office itself. There is a special constitutional prerogative, he added, in safeguarding the integrity of the presidential office, no matter the character and fitness of its occupant. "That would mean not imprisoning the officeholder or former occupants of the office based on alleged criminality done within the officeholder's official capacities as president," he elaborated and cited the Department of Justice's (DOJ's) confirmation: "to wound the President by a criminal proceeding is to hamstring the operation of the whole governmental apparatus, both in foreign and domestic affairs." He also noted the Impeachment Judgment Clause of the Constitution via Article I, Sec. 3, saying that a person convicted upon an impeachment, shall nevertheless be liable and subject to indictment, trial, judgment, and punishment. Meaning, the clause allows for the subsequent indictment after a person is convicted and convicted only. This is in agreement with the longstanding judicial canon of construction "expressio unius est exclusio alterius," or "the expression of one is the exclusion of others." This provides that because the text excludes the term "acquittal" from the relevant clause, the framers' intent was that only convicted officeholders would be open to additional prosecution, and not officeholders who were already acquitted based on the constitutional procedure for their alleged crimes, he further elaborated.

Double jeopardy clause prohibits punishing twice

The Supreme Court has affirmed that "the Double Jeopardy Clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense." Because the president has already been prosecuted twice for the asserted crimes underlying both of Smith's indictments, the legal remedy has already been applied. There is simply no other form of legal redress that is tolerable under the Constitution. Special Counsel Jack Smith. (Photo credits: AP) He also said that Biden's DOJ has already prosecuted Trump to the fullest extent the Constitution allows, and on each count, he has already been acquitted of any criminal wrongdoing. The factual grounds on which the former president allegedly committed crimes within his official duties as president have already been twice considered by the House of Representatives, for which the president, in conformance with Article II, Sec. 4, was acquitted both times by the Senate. Therefore, to continue to bring charges against the former president for the asserted crimes on which he has already been prosecuted is by definition an abuse of the judicial power and an express violation of the Double Jeopardy Clause of the Fifth Amendment: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb," the law expert explained. Trump, the first current or former president in U.S. history to face criminal charges while in his third presidential bid, currently has four outstanding indictments. He was first indicted in March by the Manhattan district attorney on state charges related to a hush-money payment to an adult film star in 2016. Prosecutors alleged he was part of an illegal conspiracy to undermine the integrity of the 2016 election. Furthermore, they alleged he was part of an unlawful plan to suppress negative information, including the $130,000 payment. In June, he was also indicted by a federal grand jury in Miami for taking classified national defense documents from the White House after he left office and resisting the government's attempts to retrieve the materials. On July 27, the special counsel charged him with three new counts, including one additional count of willful retention of national defense information. Trump's third indictment is a result of Smith's investigation into his alleged efforts, and that of his allies, to overturn the 2020 election. It also alleged he and a co-conspirator "attempted to exploit the violence and chaos at the Capitol by calling lawmakers to convince them to delay the certification" of the election. Lastly, an Atlanta-based grand jury on August 14 indicted him and 18 others on state charges stemming from their alleged efforts to overturn the former president's 2020 electoral defeat. The charges were brought in an investigation led by Fulton County District Attorney Fani Willis. Trump pleaded "not guilty" on all charges. (Related: RIGGED: Trump's charges appeared briefly on Fulton County website way before grand jury officially announced indictment.) Visit Trump.news for more news related to the ongoing legal battle the former president is fighting.

Sources include:

AmericanMind.org Edition.CNN.com

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