Gov Uscourts Cadc 40415 1208583920 0

USCA Case #23-3228 Document #2033810 Filed: 12/30/2023 Page 1 of 82
ORAL ARGUMENT SCHEDULED FOR JANUARY 9, 2024

No. 23-3228
In the
United States Court of Appeals
for the District of Columbia Circuit
____________________
UNITED STATES OF AMERICA

v.
DONALD J. TRUMP,
Defendant
____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
District Court No. 23-cr-257 (Chutkan, J.)
______________
ANSWERING BRIEF FOR THE UNITED STATES

_____________
J.P. COONEY JACK SMITH

Deputy Special Counsel Special Counsel
MICHAEL R. DREEBEN MOLLY GASTON

RAYMOND N. HULSER THOMAS P. WINDOM
Counselors to the Special Counsel Senior Assistant Special Counsels
JOHN M. PELLETTIERI JAMES I. PEARCE

CECIL W. VANDEVENDER Assistant Special Counsel
Assistant Special Counsels U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Rm. B-206
Washington, D.C. 20530
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
Pursuant to D.C. Cir. R. 28(a)(1), the undersigned certifies that:
A. Parties and Amici
The parties that appeared in the district court and that are now
before this Court are the United States (appellee) and Donald J. Trump
(defendant-appellant). Amicus briefs have been filed in this Court by the
following entities: American Oversight; Former Government Officials
and Constitutional Lawyers; and Former Officials in Five Republican
Administrations.
B. Rulings Under Review
The defendant seeks review of the order of the district court
(Chutkan, J.) denying his motions to dismiss based on Presidential
immunity and principles of double jeopardy. JA.599-641, 649-51.
C. Related Cases
The same parties litigated a different issue arising out of the same
district court case in United States v. Trump, No. 23-3190 (D.C. Cir. Dec.
8, 2023).
/s/ James I. Pearce

JAMES I. PEARCE
Assistant Special Counsel
U.S. Department of Justice
i
TABLE OF CONTENTS
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED

CASES ........................................................................................................ i
TABLE OF AUTHORITIES ..................................................................... iv
GLOSSARY OF ABBREVIATIONS ......................................................xiii
INTRODUCTION ...................................................................................... 1
JURISDICTIONAL STATEMENT ........................................................... 2
STATEMENT OF THE ISSUES ............................................................... 3
STATEMENT OF THE CASE .................................................................. 3
I. Factual and Procedural Background ...................................... 3
II. The District Court’s Order ...................................................... 6
SUMMARY OF ARGUMENT ................................................................... 7
STANDARD OF REVIEW....................................................................... 10
ARGUMENT ........................................................................................... 10
I. The Defendant Has No Immunity from Federal

Criminal Prosecution. ........................................................... 11
A. Separation-of-powers analysis provides no support

for immunizing a former President from federal
criminal prosecution. ................................................... 12
B. Constitutional text, historical practice, and other

immunity doctrines do not support the defendant’s
contrary claim. ............................................................. 29
C. Even if separation-of-powers principles limited the

federal prosecution of a former President in some
ii
unusual circumstances, those principles would not

require dismissal here.................................................. 45
D. Even if a former President were entitled to

immunity from criminal prosecution comparable to
his immunity from civil liability, dismissal is not
warranted here. ............................................................ 49
II. The Defendant’s Acquittal at an Impeachment Trial

Does Not Bar This Prosecution. ............................................ 53
CONCLUSION ........................................................................................ 65
CERTIFICATE OF COMPLIANCE ........................................................ 67
iii
TABLE OF AUTHORITIES
Cases
Abney v. United States,

431 U.S. 651 (1977) ............................................................................... 2
Anderson v. United States,

417 U.S. 211 (1974) ............................................................................. 25
Berger v. United States,

295 U.S. 78 (1935) ............................................................................... 27
Blassingame v. Trump,
87 F.4th 1 (D.C. Cir. 2023) ................................................ 29, 48, 50-51
Blockburger v. United States,

284 U.S. 299 (1932) ............................................................................. 64
Brandenburg v. Ohio,
395 U.S. 444 (1969) ............................................................................. 65
Burdick v. United States,

236 U.S. 79 (1915) ............................................................................... 39
Butz v. Economou,
438 U.S. 478 (1978) ............................................................................. 47
Cheney v. U.S. Dist. Court for Dist. of Columbia,

542 U.S. 367 (2004) ............................................................................. 27
Clinton v. Jones,
520 U.S. 681 (1997) ............................................................ 16, 18, 32-33
Coffin v. Coffin,
4 Mass. 1 (1808) .................................................................................. 40
Dames & Moore v. Regan,

453 U.S. 654 (1981) ............................................................................. 17
iv
Dennis v. Sparks,
449 U.S. 24 (1980) ............................................................................... 42
Ex Parte Commonwealth of Virginia,

100 U.S. 339 (1879) ............................................................................. 43
Forrester v. White,
484 U.S. 219 (1988) ............................................................................. 47
Franklin v. Massachusetts,
505 U.S. 788 (1992) ............................................................................. 17
Georgia v. Meadows,
No. 23-12958, 2023 WL 8714992 (11th Cir. Dec. 18, 2023) ............... 48
Gravel v. United States,

408 U.S. 606 (1972) ....................................................................... 40, 43
Hammerschmidt v. United States,

265 U.S. 182 (1924) ............................................................................. 25
Harlow v. Fitzgerald,
457 U.S. 800 (1982) ....................................................................... 21, 42
Hastings v. United States Senate,

716 F. Supp. 38 (D.D.C. 1989) ............................................ 35-36, 57-58
Hudson v. United States,

522 U.S. 93 (1997) .................................................................... 61-62, 64
Imbler v. Pachtman,
424 U.S. 409 (1976) ........................................................................ 42-43
In re al-Nashiri,
791 F.3d 71 (D.C. Cir. 2015) ............................................................... 47
In re Sealed Case,
121 F.3d 729 (D.C. Cir. 1997) ............................................................. 25
v
Johnson v. Quander,
440 F.3d 489 (D.C. Cir. 2006) ............................................................. 62
Kendall v. United States,

37 U.S. 524 (1838) ............................................................................... 16
Kennedy v. Mendoza-Martinez,
372 U.S. 144 (1965) ............................................................................. 62
Lash v. Lemke,
786 F.3d 1 (D.C. Cir. 2015) ................................................................. 10
Little v. Barreme,
6 U.S. (2 Cranch) 170 (1804) .............................................................. 16
Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803) ........................................................ 13, 15
Martin v. Mott,
25 U.S. 19 (1827) ................................................................................. 18
Medellin v. Texas,
552 U.S. 491 (2008) ............................................................................. 17
Mireles v. Waco,
502 U.S. 9 (1991) ................................................................................. 42
Mississippi v. Johnson,
71 U.S. 475 (1866) ............................................................................... 18
Missouri v. Hunter,
459 U.S. 359 (1983) ............................................................................. 63
NAACP v. Claiborne Hardware Co.,

458 U.S. 886 (1982) ............................................................................. 65
Nixon v. Adm’r of Gen. Servs.,

433 U.S. 425 (1977) ......................................................................... 9, 13
vi
Nixon v. Fitzgerald,
457 U.S. 731 (1982) ............................ 2, 7, 13, 19-20, 22, 26, 39, 47, 50
Nixon v. Sirica,
487 F.2d 700 (D.C. Cir. 1973) (en banc) ............................................. 17
Nixon v. United States,

506 U.S. 224 (1993) ............................................................................. 35
O’Shea v. Littleton,
414 U.S. 488 (1974) ............................................................................. 43
Screws v. United States,

325 U.S. 91 (1945) ............................................................................... 25
Seila Law LLC v. CFPB,

140 S. Ct. 2183 (2020) ......................................................................... 13
Spalding v. Vilas,
161 U.S. 483 (1896) ............................................................................. 44
Thompson v. Trump,
590 F. Supp. 3d 46 (D.D.C. 2022) ....................................................... 60
Trump v. Hawaii,
138 S. Ct. 2392 (2018) ......................................................................... 17
Trump v. Mazars USA, LLP,

140 S. Ct. 2019 (2020) ......................................................................... 13
Trump v. Thompson,
20 F.4th 10 (D.C. Cir. 2021) ................................................................. 3
Trump v. Vance,
140 S. Ct. 2412 (2020) .......................... 17, 23-24, 26, 30, 33, 37, 39, 42
United States v. Aguilar,

515 U.S. 593 (1995) ............................................................................. 45
vii
United States v. Armstrong,

517 U.S. 456 (1996) ............................................................................. 22
United States v. Ballestas,

795 F.3d 138 (D.C. Cir. 2015) ............................................................. 10
United States v. Brewster,

408 U.S. 501 (1972) ............................................................................. 41
United States v. Burr,

25 F. Cas. 30 (C.C.D. Va. 1807) .................................................... 12, 17
United States v. Chaplin,

54 F. Supp. 926 (S.D. Cal. 1944)......................................................... 44
United States v. Chemical Foundation, Inc.,

272 U.S. 1 (1926) ................................................................................. 22
United States v. Cisneros,

169 F.3d 763 (D.C. Cir. 1999) ............................................................. 46
United States v. Claiborne,

727 F.2d 842 (9th Cir. 1984) ............................................................... 44
United States v. Collins,

972 F.2d 1385 (5th Cir. 1992) ............................................................. 45
United States v. Dixon,

509 U.S. 688 (1996) ........................................................................ 64-65
United States v. Donner,

497 F.2d 184 (7th Cir. 1974) ............................................................... 52
United States v. Gaudin,

515 U.S. 506 (1995) ............................................................................. 24
United States v. Gillock,

445 U.S. 360 (1980) ....................................................................... 41, 43
viii
United States v. Haldeman,

559 F.2d 31 (D.C. Cir. 1976) (en banc) ............................................... 38
United States v. Hastings,

681 F.2d 706 (11th Cir. 1982) ....................................................... 23, 44
United States v. Isaacs,

493 F.2d 1124 (7th Cir. 1974) ........................................................ 44-45
United States v. Johnson,

383 U.S. 169 (1966) ............................................................................. 41
United States v. Lee,

106 U.S. 196 (1882) ............................................................................. 26
United States v. Manton,

107 F.2d 834 (2d Cir. 1939) ................................................................ 45
United States v. McCallum,

721 F.3d 706 (D.C. Cir. 2013) ............................................................. 10
United States v. Nixon,

418 U.S. 683 (1974) .......................................... 17, 24-25, 27, 30, 38, 47
United States v. R. Enterprises, Inc.,

498 U.S. 292 (1991) ............................................................................. 23
United States v. Rayburn House Off. Bldg.,

497 F.3d 654 (D.C. Cir. 2007) ....................................................... 26, 40
United States v. Rhodes,

610 F. Supp. 3d 29 (D.D.C. 2022) ....................................................... 48
United States v. Robertson,

86 F.4th 355 (D.C. Cir. 2023).............................................................. 25
United States v. Rostenkowski,

59 F.3d 1291 (D.C. Cir. 1995) ............................................................. 46
ix
United States v. Ward,

448 U.S. 242 (1980) ............................................................................. 61
Williamson v. United States,

207 U.S. 425 (1908) ............................................................................. 26
Wisconsin v. Mitchell,
508 U.S. 476 (1993) ............................................................................. 52
Yates v. Lansing,
5 Johns. 282 (N.Y. Sup. Ct. 1810), aff’d, 9 Johns. 395 (N.Y. 1811) ... 44
Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ....................................................................... 16, 46
Zivotofsky v. Kerry,
576 U.S. 1 (2015) ................................................................................. 46
Statutes, Rules, and Constitutional Provisions
U.S. Const. amend. V .............................................................................. 22
U.S. Const. art. I...................................................................................... 13
U.S. Const. art. I, § 3, cl. 6 .................................................................. 4, 34
U.S. Const. art. I, § 3, cl. 7 .................................................... 20, 31, 53, 54
U.S. Const. art. I, § 6, cl. 1 ............................................................ 8, 30, 39
U.S. Const. art. II, § 1 ....................................................................... 13, 49
U.S. Const. art. II, § 3 ............................................................................. 13
U.S. Const. art. II, § 4 ................................................................. 20, 32, 34
U.S. Const. art. VI, cl. 2 .......................................................................... 11
18 U.S.C. § 241 ........................................................................................ 65
18 U.S.C. § 371 .................................................................................... 4, 65
x
18 U.S.C. § 1512 .................................................................................. 5, 65
18 U.S.C. § 2383 ...................................................................................... 64
28 U.S.C. § 364 ........................................................................................ 43
28 U.S.C. § 1291 ........................................................................................ 2
D.C. Cir. R. 28 ............................................................................................ i
Other Authorities
167 Cong. Rec. S607 (daily ed. Feb. 9, 2021) .......................................... 24
167 Cong. Rec. S733 (daily ed. Feb. 13, 2021) .......................................... 4
167 Cong. Rec. S736 (daily ed. Feb. 13, 2021) ........................................ 58
2 J. Elliot, Debates on the Federal Constitution (2d ed. 1863) .............. 33
2 J. Story, Commentaries on the Constitution of the United

States (1833) ............................................................................ 32, 56-57
2 Records of the Federal Convention of 1787 (M. Farrand ed.

1911) .................................................................................................... 14
2 The Documentary History of the Ratification of the

Constitution (Merrill Jensen et al., eds. 1976) .................................. 55
3 J. Story, Commentaries on the Constitution of the United

States (1833) ....................................................................................... 18
4 Debates on the Constitution (J. Elliot ed. 1891) ................................. 37
9 Annals of Congress (1798) .................................................................... 56
Brett M. Kavanaugh, The President and the Independent

Counsel, 86 Geo. L.J. 2133 (1998) ...................................................... 34
David J. Barron, Office of Legal Counsel, Applicability of Federal

Criminal Laws and the Constitution to Contemplated Lethal
xi
Operations Against Shaykh Anwar al-Aulaqi (July 16,

2010)………………………………………………………………………….46
Gerald Ford, Presidential Statement (Sept. 8, 1974) ............................. 38
H.R. Res. 24, 117th Cong. (Jan. 11, 2021) .......................................... 4, 64
In re Impeachment of Former President Donald J. Trump, Trial

Memorandum of Donald J. Trump, S. Doc. 117-2 (Feb. 8,
2021) ...................................................................................................... 4
Randolph D. Moss, A Sitting President’s Amenability to

Indictment and Criminal Prosecution, 24 Op. O.L.C. 222
(Oct. 16, 2000) ......................................................................... 21, 23, 34
Randolph D. Moss, 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, 24
Op. O.L.C. 110 (Aug. 18, 2000) .................................... 36, 54, 57-59, 63
Richard Nixon, Statement by Former President Richard Nixon

(Sept. 8, 1974) ..................................................................................... 38
Robert G. Dixon, Jr., Amenability of the President, Vice

President and other Civil Officers to Federal Criminal
Prosecution while in Office (Sept. 24, 1973) ........................... 21, 34-35
Saikrishna Bangalore Prakash, Prosecuting and Punishing Our

Presidents, 100 Tex. L. Rev. 55 (2021) ......................................... 30, 37
The Federalist Papers (Clinton Rossiter ed.,

1999) .................................................................. 32, 35-36, 54, 57, 60-61
Walter Dellinger, Application of 28 U.S.C. § 458 to Presidential

Appointments of Federal Judges, 19 Op. O.L.C. 350 (Dec. 18,
1995) .................................................................................................... 49
xii
GLOSSARY OF ABBREVIATIONS
Br. Opening brief filed by the defendant
ECF No. Docket number citation in the district court
JA Joint Appendix
xiii
INTRODUCTION
For the first time in our Nation’s history, a grand jury has charged
a former President with committing crimes while in office to overturn an
election that he lost. In response, the defendant claims that to protect
the institution of the Presidency, he must be cloaked with absolute
immunity from criminal prosecution unless the House impeached and the
Senate convicted him for the same conduct. He is wrong. Separation-of-
powers principles, constitutional text, history, and precedent all make
clear that a former President may be prosecuted for criminal acts he
committed while in office—including, most critically here, illegal acts to
remain in power despite losing an election.
The Presidency plays a vital role in our constitutional system, but
so does the principle of accountability for criminal acts—particularly
those that strike at the heart of the democratic process. Rather than
vindicating our constitutional framework, the defendant’s sweeping
immunity claim threatens to license Presidents to commit crimes to
remain in office. The Founders did not intend and would never have
countenanced such a result. And multiple safeguards—ultimately
1
enforced by the Article III courts—protect against any potential burdens
on the Presidency that the defendant claims to fear.
The defendant asserts (Br.1) that this prosecution “threatens . . . to
shatter the very bedrock of our Republic.” To the contrary: it is the
defendant’s claim that he cannot be held to answer for the charges that
he engaged in an unprecedented effort to retain power through criminal
means, despite having lost the election, that threatens the democratic
and constitutional foundation of our Republic. This Court should affirm
and issue the mandate expeditiously to further the public’s—and the
defendant’s—compelling interest in a prompt resolution of this case.
JURISDICTIONAL STATEMENT
The district court entered its order on December 1, 2023, and the
defendant filed a timely notice of appeal on December 7, 2023. JA.647-
48. This Court has jurisdiction under 28 U.S.C. § 1291 and the collateral-
order doctrine for the defendant’s claims that he is immune from
prosecution, Nixon v. Fitzgerald, 457 U.S. 731, 742-43 (1982), and that
double-jeopardy principles prevent his criminal prosecution, Abney v.
United States, 431 U.S. 651, 662-63 (1977).
2
STATEMENT OF THE ISSUES
I. Whether the defendant is immune from federal prosecution
for crimes committed while he served as President of the United States.
II. Whether the defendant’s impeachment in the House followed
by acquittal in the Senate precludes his criminal prosecution.
STATEMENT OF THE CASE
I. Factual and Procedural Background
The defendant lost the 2020 presidential election. Nonetheless,
according to a later grand jury indictment, in the weeks following the
election, he conspired to use knowingly false claims of election fraud with
the goal of overturning the legitimate results of that election and
disenfranchising millions of voters. The conspiracies culminated in an
attack on the United States Capitol on January 6, 2021, when both
Houses of Congress met to certify the Presidential election results, in
accordance with procedures set out in the Constitution and federal law.
A violent mob forced past police officers and into the Capitol building,
causing Members of Congress and the Vice President to flee, delaying the
certification, and leaving “multiple people dead, injur[ing] more than 140
people, and inflict[ing] millions of dollars in damage to the Capitol.”
Trump v. Thompson, 20 F.4th 10, 15 (D.C. Cir. 2021).
3
Five days later, the United States House of Representatives
adopted a single-article resolution to impeach the defendant for high
crimes and misdemeanors for violating his “constitutional oath faithfully
to execute the office of President of the United States . . . by inciting
violence against the Government of the United States.” H.R. Res. 24,
117th Cong. (Jan. 11, 2021). The House impeached the defendant, and
after the defendant’s term in office ended, a trial was held in the Senate,
where the defendant contended that the Senate lacked jurisdiction to try
him. See In re Impeachment of Former President Donald J. Trump, Trial
Memorandum of Donald J. Trump, S. Doc. 117-2 at 122-39 (Feb. 8, 2021).
On February 13, 2021, 57 Senators voted to convict, and 43 Senators
voted to acquit, 167 Cong. Rec. S733 (daily ed. Feb. 13, 2021), resulting
in an acquittal, see U.S. Const. art. I, § 3, cl. 6 (two-thirds majority
required for impeachment conviction).
On August 1, 2023, a grand jury charged the defendant in a four-
count indictment. JA.24-68. Count One, which charges a conspiracy to
defraud the United States, in violation of 18 U.S.C. § 371, alleges that
the defendant, then a candidate seeking re-election to the Presidency,
conspired with, among others, several individuals outside the Executive
4
Branch to “overturn the legitimate results of the 2020 presidential
election by using knowingly false claims of election fraud to obstruct the
federal government function by which those results are collected,
counted, and certified.” JA.24-26. The indictment further alleges that
the defendant aimed at accomplishing the conspiracy’s objectives in five
ways: using deceit toward state officials to subvert the legitimate election
results in their respective states, id. at 32-44; using deceit to organize
fraudulent slates of electors in seven targeted states, and cause them to
send false certificates to Congress, id. at 44-50; leveraging the
Department of Justice to use deceit to get state officials to replace the
legitimate electoral slates with electors who would cast their votes for the
defendant, id. at 50-54; attempting to enlist the Vice President to
fraudulently alter the election results during the certification proceeding
on January 6, 2021, and directing supporters to the Capitol to obstruct
the proceeding, id. at 55-62; and exploiting the violence and chaos that
transpired at the United States Capitol on January 6, 2021, id. at 62-65.
Counts Two and Three, which incorporate allegations from Count One,
charge conspiracy and substantive violations of 18 U.S.C. § 1512(c)(2) for
corruptly obstructing the certification of the Presidential election results
5
on January 6, 2021. Id. at 66-67. Count Four, which likewise
incorporates the allegations from Count One, alleges that the defendant
conspired to violate one or more person’s constitutional right to vote and
have one’s vote counted. Id. at 68.
The district court scheduled the trial to begin on March 4, 2024.
JA.324.
II. The District Court’s Order
As relevant here, the defendant filed two pretrial motions to
dismiss the indictment. In one, he argued that he was immune for acts
within the “‘outer perimeter’” of his official Presidential responsibilities
and that the indictment’s allegations all fell within that outer perimeter.
JA.331-82. In another, he contended that the Impeachment Judgment
Clause and the Double Jeopardy Clause precluded his prosecution.
JA.437-67.
The district court denied the defendant’s Presidential-immunity
and double-jeopardy motions. JA.599-646. The court explained that the
Constitution’s text, structure, and history supported the conclusion that
the defendant “may be subject to federal investigation, indictment,
prosecution, conviction, and punishment for any criminal acts
6
undertaken while in office.” JA.604-24. The court “expresse[d] no
opinion” on whether any of the acts alleged in the indictment fell within
the “‘outer perimeter’” of the defendant’s Presidential responsibilities.
Id. at 628-29. The district court also rejected the defendant’s claims that
principles of double jeopardy or the Impeachment Judgment Clause
precluded his prosecution based on his acquittal at the Senate
impeachment proceeding. Id. at 636-42.
SUMMARY OF ARGUMENT
I. The defendant, a former President, does not enjoy immunity from
federal prosecution for the offenses charged in this case. Under
separation-of-powers analysis, the President’s unique constitutional
status provides immunity from civil liability for official conduct, see
Nixon v. Fitzgerald, 457 U.S. 731 (1982), but it does not render a former
President immune from criminal liability when charged with violations
of generally applicable federal criminal statutes. Any burdens of post-
Presidency criminal liability have minimal impact on the functions of an
incumbent and are outweighed by the paramount public interest in
upholding the rule of law through federal prosecution. Constitutional
text, historical practice, and other immunity doctrines confirm that
7
conclusion. The Impeachment Judgment Clause limits Congress’s
remedies to removal and disqualification from office and thereby
prevents the Senate from imposing criminal punishment. But it does not
make conviction at a Senate trial a condition precedent to criminal
prosecution, which serves a function distinct from impeachment and
removal. No historical materials support the defendant’s broad
immunity claim, and the post-Presidency pardon that President Nixon
accepted reflects the consensus view that a former President is subject to
prosecution after leaving office. Nor can Presidential immunity be
derived by analogy to the Speech or Debate Clause, U.S. Const. art. I, § 6,
cl. 1; that textually explicit provision is defined and limited by its unique
history. More apt is the immunity for judges and prosecutors, who are
immune from civil liability for official conduct, but not from federal
prosecution.
The defendant does not advance a position short of absolute
immunity for conduct that he describes, at a high level of generality, as
official acts. But even assuming the Court wished to reserve the
possibility of some narrower constitutional protection for former
Presidents from prosecution for conduct essential to their
8
“constitutionally assigned functions,” Nixon v. Adm’r of Gen. Servs., 433
U.S. 425, 443 (1977), such a doctrine would have no application to the
defendant, who is alleged to have conspired with private individuals and
government officials to use fraudulent means to thwart the transfer of
power and remain in office. And even if a former President could claim
immunity from criminal prosecution commensurate with his immunity
from civil damages liability for official conduct, dismissal would be
unwarranted because the indictment contains substantial allegations of
a plot to overturn the election results that fall well outside the outer
perimeter of official Presidential responsibilities.
II. The defendant’s acquittal at an impeachment trial does not bar
this prosecution under either the Impeachment Judgment Clause or
principles of double jeopardy. The Impeachment Judgment Clause limits
congressional sanctions for impeachment to removal and disqualification
from office; it does not create a double-jeopardy prohibition that protects
an impeached but not convicted officer from criminal prosecution.
Structural considerations—including the special function of
impeachment within the constitutional separation of powers and the
many distinctions between impeachment and criminal verdicts—
9
reinforce the conclusion that the Impeachment Judgment Clause permits
prosecution of a former President impeached by the House but acquitted
by the Senate. Nor is the prosecution here barred by double-jeopardy
principles. Because the only remedies available in the impeachment
proceedings were removal and disqualification, the defendant was never
previously placed in jeopardy. But even if he were, the indictment
charges different offenses than were at issue in his impeachment.
STANDARD OF REVIEW
The defendant’s Presidential-immunity and double-jeopardy claims
are legal claims that this Court reviews de novo. See Lash v. Lemke, 786
F.3d 1, 5 (D.C. Cir. 2015) (immunity); United States v. McCallum, 721
F.3d 706, 709 (D.C. Cir. 2013) (double jeopardy). In reviewing those
claims, the Court “assumes the truth” of the “factual allegations” in the
indictment. United States v. Ballestas, 795 F.3d 138, 149 (D.C. Cir.
2015).
ARGUMENT
The defendant argues that Presidential immunity and principles of
double jeopardy warrant dismissal of the indictment. Those arguments
lack support in the separation of powers, constitutional text, history, or
precedent. Both arguments also threaten to undermine democracy. The
10
defendant’s immunity claim implies that a President may use any means
necessary to remain in power and evade federal criminal liability for his
conduct unless first impeached and convicted. And his invocation of
double-jeopardy principles implies that a Senate acquittal of a former
President because he is no longer in office forever insulates him from
criminal accountability. Those claims draw no support from our
constitutional heritage and, if accepted, would damage bedrock principles
of equality before the law. The Court should affirm.
I. The Defendant Has No Immunity from Federal Criminal

Prosecution.
An individual who has served as President but is no longer in office
may face investigation, indictment, trial, and, if convicted, punishment
for conduct committed during the Presidency. The President stands
alone in the constitutional firmament, but legal principles and historical
evidence establish that, once out of office, a former President may face
federal criminal prosecution like any other citizen.1 See United States v.
Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807) (“[T]he President is elected from
1 This brief addresses only a federal criminal prosecution.

Prosecution by a state or local entity would raise separate questions
under the Constitution’s Supremacy Clause, U.S. Const. art. VI, cl. 2. See
JA.616.
11
the mass of the people, and, on the expiration of the time for which he is
elected, returns to the mass of the people again.”). Neither the separation
of powers, constitutional text, historical practice, nor other immunity
doctrines support a contrary rule, and its acceptance would violate the
fundamental principle that no one in this country, not even the President,
is above the law.
A. Separation-of-powers analysis provides no support for

immunizing a former President from federal criminal
prosecution.
Although the Supreme Court has not squarely addressed an
incumbent or former President’s amenability to criminal prosecution, it
has consistently rejected claims that a President is immune from
criminal process, even while recognizing some immunity from civil
liability. See infra at 17, 19. In this line of cases, the governing
separation-of-powers analysis considers (1) whether a congressionally
imposed limitation on Presidential action “prevents the Executive
Branch from accomplishing its constitutionally assigned functions,” and
(2), if the “potential for disruption is present[,] . . . whether that impact
is justified by an overriding need to promote objectives within the
constitutional authority of Congress.” Nixon v. Adm’r of Gen. Servs., 433
12
U.S. 425, 443 (1977). Contrary to the defendant’s contentions (Br.9-12,
21-25), that analysis does not support immunity of a former President
from federal criminal prosecution.
1. The President of the United States “occupies a unique position
in the constitutional scheme.” Nixon v. Fitzgerald, 457 U.S. 731, 749
(1982). The Constitution vests the “executive Power” in the President,
id. (quoting U.S. Const. art. II, § 1), and entrusts him with commander-
in-chief, foreign-affairs, supervisory, and policy duties “of utmost
discretion and sensitivity.” Id. at 750. The President is “the only person
who alone composes a branch of government.” Trump v. Mazars USA,
LLP, 140 S. Ct. 2019, 2034 (2020); see also Seila Law LLC v. CFPB, 140
S. Ct. 2183, 2203 (2020). The President’s duties, however, do not operate
in a realm without law. They exist within a scheme of separated powers
in which Congress makes laws, U.S. Const. art. I; the President “shall
take Care that the Laws be faithfully executed,” id., art. II, § 3; and the
Article III courts exercise the judicial power to “say what the law is,”
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
The Founders were keenly aware that vesting executive power in a
single person carried with it unique risks of abuse. As James Madison
13
explained, Congress’s composition as a multi-member body made it
implausible to “presume[] that all or even a majority of the members . . .
would either lose their capacity for discharging, or be bribed to betray,
their trust,” given the “difficulty of acting in concert for purposes of
corruption.” 2 Records of the Federal Convention of 1787, at 66 (M.
Farrand ed. 1911). By contrast, because “the Executive Magistracy . . .
was to be administered by a single man, loss of capacity or corruption
was more within the compass of probable events, and either of them
might be fatal to the Republic.” Id.; see id. at 67 (Edmund Randolph
noting that “[t]he Executive will have great opportunitys [sic] of abusing
his power”). George Mason agreed that no man should “be above Justice,”
least of all he “who can commit the most extensive injustice.” Id. at 65.
The defendant nevertheless advances the broad argument (Br.9-12)
that the separation of powers mandates immunity from any judicial
review of a President’s official acts. For that proposition, the defendant
invokes Marbury itself, wresting from context Chief Justice Marshall’s
statement that “[t]he acts of such an officer, as an officer, can never be
examinable by the courts.” Br.10 (quoting 5 U.S. (1 Cranch) at 166). But
the defendant’s reading of that language is at odds with Marbury itself,
14
with subsequent decisions reviewing Presidential acts, and with the
defendant’s own argument.
The defendant misconstrues Marbury as placing all Presidential
acts beyond judicial cognizance. In fact, the relevant passage of Marbury
addressed the reviewability of acts by Executive Branch officers in
general, not the President in particular, and Chief Justice Marshall
distinguished between “a mere political act, belonging to the executive
department alone, for the performance of which[] entire confidence is
placed by our constitution in the supreme executive,” 5 U.S. (1 Cranch)
at 164, and duties that the legislature imposes on an Executive Branch
officer, which “he is directed peremptorily to perform,” in which case “he
is so far the officer of the law; is amenable to the laws for his conduct;
and cannot at his discretion sport away the vested rights of others,” id.
at 166. Marbury stated that courts have “no power to control [executive]
discretion,” id. at 164 (emphasis added), but it reaffirmed that courts
unquestionably have power to review adherence to the law by Executive
Branch officers, id. at 168-71, which includes the President himself.
Precedent from the founding era forward confirms that courts can
review Presidential acts. For example, in Little v. Barreme, 6 U.S. (2
15
Cranch) 170 (1804) (Marshall, C.J.), the Supreme Court held that an
order by President Adams to seize certain vessels violated the
Nonintercourse Act and therefore was invalid. In Kendall v. United
States, 37 U.S. 524 (1838), the Court held that President Jackson’s order
forbidding a postmaster from paying a government contractor violated a
statutory requirement to pay the bill, explaining that “clothing the
President with a power entirely to control the legislation of congress”
would “paralyze the administration of justice.” Id. at 613. And in
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), the Court
reviewed “whether the President was acting within his constitutional
power when he issued an order directing the Secretary of Commerce to
take possession of and operate most of the Nation’s steel mills.” Id. at
582; see Clinton v. Jones, 520 U.S. 681, 703 (1997) (citing Youngstown
for the observation that the Supreme Court has “long held that when the
President takes official action, the Court has the authority to determine
whether he has acted within the law”). Judicial review of Presidential
compliance with the law continues to the present. See, e.g., Trump v.
Hawaii, 138 S. Ct. 2392 (2018); Medellin v. Texas, 552 U.S. 491 (2008);
Dames & Moore v. Regan, 453 U.S. 654 (1981). And significantly here,
16
courts have conclusively rejected Presidential claims of unreviewable
power to resist criminal process. See Trump v. Vance, 140 S. Ct. 2412,
2431 (2020); United States v. Nixon, 418 U.S. 683, 713 (1974); Nixon v.
Sirica, 487 F.2d 700, 709 (D.C. Cir. 1973) (en banc) (per curiam); Burr,
25 F. Cas. at 33-34.
The defendant’s remaining authorities do not establish otherwise.
The defendant relies (Br.11-12, 30, 38) on a separate opinion in Franklin
v. Massachusetts, 505 U.S. 788 (1992), stating that “no court has
authority to direct the President to take an official act” but that judicial
review of Presidential action can nevertheless “be obtained in a suit
seeking to enjoin the officers who attempt to enforce the President’s
directive.” Id. at 826-29 (Scalia, J., concurring in part and concurring in
the judgment). Nothing in Justice Scalia’s analysis supports the
defendant’s claim that a former President’s official acts are categorically
unreviewable—let alone that he is immune from federal criminal
prosecution. Nor does the defendant’s citation (Br.11) to Story’s
Commentaries on the Constitution of the United States, ch. 37, § 1563
(1833), assist him; the Supreme Court has explained that Story “did not
specify the dimensions of the necessary immunity,” and it declined to
17
treat Story’s statement as controlling or informative on the immunity
question before it. Clinton, 520 U.S. at 695 & n.23; see also JA.410-11
(explaining limited relevance of the passage in Story). Martin v. Mott,
25 U.S. 19, 32-33 (1827), dealt with the discretionary act of the President
to call forth the militia to repel an invasion—a far cry from the violations
of criminal law alleged here. And the ruling in Mississippi v. Johnson,
71 U.S. 475, 499 (1866), that the Court would not enjoin “the exercise of
Executive discretion” to enforce the Reconstruction Acts provides no
precedent for the assertion that courts are powerless to consider
allegations that a former President violated federal criminal laws while
in office.
Finally, the defendant’s blanket claim that courts cannot review
Presidential acts is contradicted by his own position (Br.31) that “a
President may be prosecuted, but only if he is first impeached, tried, and
convicted by the U.S. Senate.” That concession is fundamentally
inconsistent with his argument that criminal immunity is a functionally
mandated incident of the separation of powers. If courts can hear such
criminal cases, Presidential acts are plainly not beyond the reach of the
judiciary. And nothing in the text or history of the Impeachment
18
Judgment Clause gives a former President any immunity—let alone one
that vanishes only if he was impeached by the House and convicted by
the Senate. See infra at 30-36.
2. The defendant’s invocation (Br.21-25) of “[p]olicy rooted in the
separation of powers” fares no better. In Fitzgerald, the Supreme Court
held that Presidential immunity from civil damages liability is a
“functionally mandated incident of the President’s unique office, rooted
in the constitutional tradition of the separation of powers.” 457 U.S. at
749. The Court reasoned that separation of powers requires the
balancing of “the constitutional weight of the interest to be served against
the dangers of intrusion on the authority and functions of the Executive
Branch.” Id. at 754. Contrary to the defendant’s claim, such balancing
does not support the conclusion that a former President who was not
impeached and convicted enjoys immunity from criminal prosecution for
any acts that fall within the outer perimeter of his official duties.
a. The defendant identifies (Br.21-24) several burdens that he
claims criminal liability would place on the Presidency. Each of those
burdens is overstated, and they do not, individually or collectively,
19
outweigh the deeply rooted public interest in enforcing federal criminal
law.
i. The defendant’s suggestion (Br.22-23) that an incumbent
President would be inhibited by the prospect of future federal criminal
prosecution lacks any historical or empirical support. Since the founding,
every President has discharged the office’s demanding duties with the
knowledge that he could be impeached and separately “subject to
Indictment, Trial, Judgment and Punishment, according to Law.” U.S.
Const. art. II, § 4; id. at art. I, § 3, cl. 7. Even under the defendant’s view,
the prospect of impeachment and prosecution has existed throughout our
Nation’s history, and it has never been thought to deter the sort of “bold
and unhesitating action,” Fitzgerald, 457 U.S. at 745, that the Presidency
requires. Indeed, the Executive Branch and multiple Presidents,
including the defendant, have consistently acknowledged that any
criminal immunity ends once a President leaves office. See United States
v. Nixon, Nos. 73-1766, 73-1834, Br. of Respondent, 1974 WL 174855, at
*98 (June 21, 1974) (President may “be indicted after he leaves office at
the end of his term or after being ‘convicted’ by the Senate in an
impeachment proceeding”); Trump v. Vance, No. 19-635, Br. of
20
Petitioner, 2020 WL 528038, at *16, *33 (Jan. 27, 2020) (emphasizing
that the temporary immunity the defendant here sought in that case
“would expire when the President leaves office” and therefore would not
“place the President ‘above the law’”); see also Randolph D. Moss, A
Sitting President’s Amenability to Indictment and Criminal Prosecution,
24 Op. O.L.C. 222, 255 (Oct. 16, 2000) (a President may be prosecuted
“once [his] term is over or he is otherwise removed from office by
resignation or impeachment”); Robert G. Dixon, Jr., Amenability of the
President, Vice President and other Civil Officers to Federal Criminal
Prosecution while in Office, at 4-5 (Sept. 24, 1973) (“Amenability of the
President”) (rejecting as “unreasonable” the claim that “an offending
federal officer acquires a lifetime immunity against indictment unless
the Congress takes time to impeach him”). And to the extent that any
concern about chilling the President is implicated, the prospect of future
criminal prosecution for knowingly criminal acts can have a salutary, not
a chilling, effect. See Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982)
(“Where an official could be expected to know that certain conduct would
violate statutory or constitutional rights, he should be made to
hesitate.”).
21
ii. The concern that a former President subject to civil suit could
become “an easily identifiable target” for “highly intrusive” private
lawsuits from “countless people,” Fitzgerald, 457 U.S. at 753, 756, or
“vexatious” civil actions (Br.23-24) does not translate to the criminal
context. Cf. Trump v. Vance, No. 19-635, Reply Br. of Petitioner, 2020
WL 1643779, at *14 (Mar. 27, 2020) (“The concern about an avalanche of
criminal subpoenas targeting the President is not present in federal
court.”). The Supreme Court has long applied a strong presumption of
prosecutorial regularity because prosecutors exercise a “special province”
of executive power derived from authority stemming from Article II. See
United States v. Armstrong, 517 U.S. 456, 464 (1996) (absent “clear
evidence to the contrary, courts presume that [prosecutors] have properly
discharged their official duties.”) (quoting United States v. Chemical
Foundation, Inc., 272 U.S. 1, 14-15 (1926)). Unlike a civil lawsuit, a
federal felony prosecution of a former President requires an indictment
by a grand jury, U.S. Const. amend. V, which is “prohibited from
engaging in ‘arbitrary fishing expeditions’ and initiating investigations
‘out of malice or an intent to harass,’” Vance, 140 S. Ct. at 2428 (quoting
United States v. R. Enterprises, Inc., 498 U.S. 292, 299 (1991)); see A
22
Sitting President’s Amenability to Indictment and Criminal Prosecution,
24 Op. O.L.C. at 250 (noting that a criminal indictment “is a public rather
than private allegation of wrongdoing reflecting the official judgment of
a grand jury acting under the general supervision of the District Court”). 2
Article III courts, moreover, can address any legally defective
prosecutions. Former Presidents “enjoy the same protection as do all
citizens from vindictive [or selective] prosecution,” 3 United States v.
Hastings, 681 F.2d 706, 711 (11th Cir. 1982), and courts could be
expected to review a former President’s claims—as have been made here
(ECF No. 116)—“meticulous[ly],” Vance, 140 S. Ct. 2430 (quoting Nixon,
2That the Department of Justice and others (see Br.29, 34-35) have
concluded that prosecuting a sitting President would constitute an
“‘unavoidably political’ task” (citation omitted) reflects the view that
prosecution would seriously interfere with a President’s ability “to carry
out his constitutional functions,” and thus would be tantamount to
removal from office. A Sitting President’s Amenability to Indictment and
Criminal Prosecution, 24 Op. O.L.C. at 246, 258. But that consideration
is inapplicable to a former President, as the defendant acknowledges.
See Br.29 (certain “burdens” on a sitting President “naturally . . . do not
apply to a former President”).
3As the defendant has noted, the specter of a politically motivated
prosecution “is diminished at the federal level” and is unlikely to “deter[]”
a President “from vigorously fulfilling the responsibilities of his office.”
Trump v. Vance, No. 19-635, Reply Br. of Petitioner, 2020 WL 1643779,
at *14 (Mar. 27, 2020).
23
418 U.S. at 702). Similarly, to the extent the defendant believes (Br.32-
33) that the charged offenses reflect “novel” and unsound interpretations
of the relevant statutes or the improper criminalization of “core political
speech and advocacy,” he can challenge the indictment on that basis—as
he has, JA.437-67.
Complementing those protections are the rigorous standards to
prove criminal offenses and evidentiary limitations that would come into
play with respect to any prosecution of a former President. See 167 Cong.
Rec. S607 (daily ed. Feb. 9, 2021) (the defendant arguing at his
impeachment trial that criminal investigation and prosecution would be
more “appropriate” than impeachment, because trial in the Senate “does
not and cannot offer the safeguards of the judicial system”). Unlike in
private civil actions, the government in a federal prosecution must prove
the defendant’s guilt beyond a reasonable doubt to a unanimous jury.
United States v. Gaudin, 515 U.S. 506, 510 (1995). Proving a former
President’s criminal guilt will often require satisfying that standard with
respect to demanding mens rea elements. Here, for example, the
Government must prove that the defendant conspired to obstruct a lawful
government function through deceitful and dishonest means,
24
Hammerschmidt v. United States, 265 U.S. 182, 188 (1924); conspired to
corruptly obstruct and corruptly obstructed a congressional proceeding,
United States v. Robertson, 86 F.4th 355, 366-68 (D.C. Cir. 2023); and
conspired to “act in open defiance or in reckless disregard of a
constitutional requirement which has been made specific and definite,”
Screws v. United States, 325 U.S. 91, 105 (1945) (plurality opinion), with
the “specific intent to interfere with the federal rights in question,”
Anderson v. United States, 417 U.S. 211, 223 (1974). And to obtain
certain evidence to establish whether a former President had a culpable
mens rea, the Government must—as it already has in this case—seek
relief from the court to overcome any claim of executive privilege. See
Nixon, 418 U.S. at 713; In re Sealed Case, 121 F.3d 729, 754 (D.C. Cir.
1997). These formidable safeguards counsel strongly against the need to
extend a former President’s civil immunity to the criminal context.
b. The overriding interest at stake in this case, as in any federal
prosecution, is upholding the rule of law, and the immunity the defendant
advocates would undermine that critical interest.
i. As the district court correctly concluded, JA.618-24, permitting
this case to proceed would “vindicate the public interest in an ongoing
25
criminal prosecution.” Fitzgerald, 457 U.S. at 754; see JA.619
(explaining that Fitzgerald was “undivided in contemplating that the
public interest could require a former President’s criminal liability”).
Most fundamentally, the broad immunity the defendant advocates would
undermine the principle that “[n]o man in this country is so high that he
is above the law.” United States v. Lee, 106 U.S. 196, 220 (1882). That
principle extends to “[a]ll the officers of the government, from the highest
to the lowest,” and requires that “every man who by accepting office
participates in its functions is only the more strongly bound to submit to
that supremacy.” Id.; see United States v. Rayburn House Off. Bldg., 497
F.3d 654, 672-73 (D.C. Cir. 2007) (Henderson, J., concurring in the
judgment) (“[T]he laws of this country allow no place or employment as a
sanctuary for crime.”) (citing Williamson v. United States, 207 U.S. 425,
439 (1908)). And the principle that no one is above the law “applies, of
course, to a President.” Vance, 140 S. Ct. at 2432 (Kavanaugh, J.,
concurring).
The greater public interest in criminal rather than civil matters “is
not just a matter of formalism.” Cheney v. U.S. Dist. Court for Dist. of
Columbia, 542 U.S. 367, 384 (2004). Although the interests at stake in
26
civil litigation are “far from negligible,” id., the courts’ “primary
constitutional duty” is “to do justice in criminal prosecutions,” Nixon, 418
U.S. at 707. The Supreme Court in Nixon emphasized that “our
historic[al] commitment to the rule of law . . . is nowhere more profoundly
manifest than in our view that ‘the twofold aim (of criminal justice) is
that guilt shall not escape or innocence suffer.’” Id. at 708-09 (quoting
Berger v. United States, 295 U.S. 78, 88 (1935)). Extending immunity
recognized for a former President in civil cases to the “much weightier”
criminal context, Cheney, 542 U.S. at 384, would undermine that bedrock
commitment to the rule of law.
ii. Bestowing far-reaching immunity from criminal prosecution on
a former President would also expose the Nation to dangerous risks.
Under the defendant’s view, unless a former President had been first
impeached and convicted, he would be wholly immune from criminal
prosecution for acts ostensibly within the outer perimeter of his official
duties even when those acts are crimes that benefit him, endanger the
Republic, or both. A former President could thus bank on the practical
obstacles to impeachment (a remedy designed to remove, not hold
criminally accountable, a corrupt officer) to provide a safe harbor
27
insulating him from prosecution once he has left office. See infra at 30-
36 (explaining why such a view misinterprets the constitutional
impeachment system). Immunity from criminal prosecution would be
particularly dangerous where, as here, the former President is alleged to
have engaged in criminal conduct aimed at overturning the results of a
Presidential election to remain in office beyond the allotted term. A
President who unlawfully seeks to retain power through criminal means
unchecked by potential criminal prosecution could jeopardize both the
Presidency itself and the very foundations of our democratic system of
governance.
The implications of the defendant’s broad immunity theory are
sobering. In his view, a court should treat a President’s criminal conduct
as immune from prosecution as long as it takes the form of
correspondence with a state official about a matter in which there is a
federal interest, a meeting with a member of the Executive Branch, or a
statement on a matter of public concern. That approach would grant
immunity from criminal prosecution to a President who accepts a bribe
in exchange for directing a lucrative government contract to the payer; a
President who instructs the FBI Director to plant incriminating evidence
28
on a political enemy; a President who orders the National Guard to
murder his most prominent critics; or a President who sells nuclear
secrets to a foreign adversary, because in each of these scenarios, the
President could assert that he was simply executing the laws; or
communicating with the Department of Justice; or discharging his
powers as Commander-in-Chief; or engaging in foreign diplomacy.
Under the defendant’s framework, the Nation would have no recourse to
deter a President from inciting his supporters during a State of the Union
address to kill opposing lawmakers—thereby hamstringing any
impeachment proceeding—to ensure that he remains in office unlawfully.
See Blassingame v. Trump, 87 F.4th 1, 21 (D.C. Cir. 2023) (President’s
delivery of the State of the Union address is an official act). Such a result
would severely undermine the compelling public interest in the rule of
law and criminal accountability.
B. Constitutional text, historical practice, and other immunity

doctrines do not support the defendant’s contrary claim.
The defendant contends (Br.12-21) that constitutional text,
historical practice, and other immunity doctrines support his broad claim
of post-Presidential immunity. None does.
29
1. Unlike the explicit textual immunity granted to legislators under
the Speech or Debate Clause, U.S. Const. art. I, § 6, cl. 1, which provides
that “for any Speech or Debate in either House,” members of Congress
“shall not be questioned in any other Place,” the Constitution does not
expressly provide such protection for the President or any executive
branch officials. See Vance, 140 S. Ct. at 2434 (Thomas, J., dissenting)
(“The text of the Constitution explicitly addresses the privileges of some
federal officials, but it does not afford the President absolute immunity.”);
JA.604-06. By contrast, state constitutions at the time of the founding in
Virginia and Delaware did grant express criminal immunity to the state’s
chief executive officer. JA.605 (citing Saikrishna Bangalore Prakash,
Prosecuting and Punishing Our Presidents, 100 Tex. L. Rev. 55, 69
(2021)). To be sure, the federal Constitution’s “silence . . . on this score is
not dispositive,” Nixon, 418 U.S. at 705 n.16, but that silence is telling
when placed against the Constitution’s Impeachment Judgment Clause,
which presupposes and expressly preserves the availability of criminal
prosecution following impeachment and conviction. See U.S. Const. art.
I, § 3, cl. 7. Where a President—or any federal officer—has been
impeached by the House and convicted at an impeachment trial in the
30
Senate, the Impeachment Judgment Clause provides that the
punishment for such impeachment and conviction “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.” Id.
Nothing in that Clause conditions prosecution on prior impeachment.
See infra at 33-35. And it would be incongruous to conclude that the
Constitution contains any implicit form of immunity from criminal
prosecution for a former President when the Constitution expressly
states that a former President may be subject to criminal prosecution
after impeachment by the House and conviction by the Senate.
The constitutional impeachment system explains why no such
implicit immunity exists. Under the Constitution, a President is subject
to impeachment and Senate conviction for, among other things, “high
crimes and misdemeanors.” U.S. Const. art. II, § 4 (capitalization
altered). The phrase “high crimes and misdemeanors” was aimed at the
“misconduct of public men,” including the “abuse or violation of some
public trust.” Federalist No. 65, at 364 (Alexander Hamilton) (Clinton
31
Rossiter ed., 1999). In that respect, “high crimes and misdemeanors”
were principally offenses that “may with peculiar propriety be
denominated POLITICAL, as they relate chiefly to injuries done
immediately to the society itself.” Id.; accord 2 Joseph Story,
Commentaries on the Constitution of the United States § 783 (1833)
(noting that the “offences, to which the remedy of impeachment has been,
and will continue to be principally applied, are of a political nature”). The
conduct that impeachment targets includes “acts taken in [the
President’s] ‘public character’—that is, official acts[.]” Clinton, 520 U.S.
at 696. Thus, the Constitution explicitly permits the impeachment and
conviction of a President for official conduct taken in his public role and
likewise explicitly provides for an impeached and convicted President’s
criminal prosecution for the same conduct. Given that, the Constitution
cannot be understood simultaneously (and implicitly) to immunize a
former President from criminal prosecution for official acts; rather, the
Constitution envisions Presidential accountability in his political
capacity through impeachment and in his personal capacity through
prosecution. See Clinton, 520 U.S. at 696 (“[F]ar from being above the
laws, [the President] is amenable to them in his private character as a
32
citizen, and in his public character by impeachment.”) (quoting 2 J. Elliot,
Debates on the Federal Constitution 480 (2d ed. 1863) (James Wilson)).
The defendant’s contention (Br.12-13) that impeachment followed
by conviction is a condition precedent to criminal prosecution misreads
both Hamilton and Justice Alito’s dissenting opinion in Vance, supra.
Each made the undisputed point that a President must leave office before
any prosecution may commence. See Vance, 140 S. Ct. 2412, 2444-45
(Alito, J., dissenting) (citing Hamilton’s essays in Federalist Nos. 69 and
77 in support of the proposition that “[b]oth the structure of the
Government established by the Constitution and the Constitution’s
provisions on the impeachment and removal of a President make it clear
that the prosecution of a sitting President is out of the question”). Thus,
if Congress declines to “impeach and remove” a sitting President, he
cannot face criminal prosecution “until his term in office expires.” Brett
M. Kavanaugh, The President and the Independent Counsel, 86 Geo. L.J.
2133, 2161 (1998); accord A Sitting President’s Amenability to
Indictment and Criminal Prosecution, 24 Op. O.L.C. at 255.
If, by contrast, the defendant’s condition-precedent theory were
correct, criminal investigations and prosecutions of any federal official—
33
not just a former President 4—would give rise to complex preliminary
questions such as whether the suspect was an “officer” subject to
impeachment, whether the conduct in question amounted to “Treason,
Bribery, or other high Crimes and Misdemeanors,” U.S. Const. art. II,
§ 4, and whether Congress had jurisdiction over someone who had left
office. It would also require Congress to expend significant resources to
impeach and convict all officers—even those who had left office—before
criminal proceedings could commence. An approach that “injects such
complications into criminal proceedings,” Amenability of the President,
at 7, and “pressure[s] Congress to conduct a large number of
impeachment proceedings,” id. at 17, could not be correct, as the history
of prosecutions preceding impeachments demonstrates, see Nixon v.
United States, 506 U.S. 224, 226-27 (1993) (defendant-judge criminally
prosecuted and then impeached); Hastings v. United States Senate, 716
F. Supp. 38, 41 (D.D.C. 1989) (same); see also Amenability of the
4The Constitution’s text undermines the defendant’s suggestion

(Br.52 n.6) that the Impeachment Judgment Clause operates differently
for Presidents. The Framers provided in the preceding clause that at a
President’s impeachment trial (and only at such a trial), the Chief Justice
presides, art. I, § 3, cl. 6, but provided no special Presidential
dispensation in the Impeachment Judgment Clause.
34
President, at 4 (observing that, as of 1973, although only 12
impeachments had occurred, “scores, if not hundreds, of officers of the
United States have been subject to criminal proceedings for offenses for
which they could have been impeached”).
The defendant’s argument (Br.13-14; see also id. at 29-30) that
impeachment is the “principal check” for Presidential “malfeasance” is
also incorrect. Hamilton’s description of the impeachment process
supports the constitutional difference between the political means of
removing an official from office and the legal means of holding an official
accountable for violations of law. See Federalist No. 65. As Hamilton
recognized, impeachment proceedings may “agitate the passions of the
whole community” and “divide it into parties more or less friendly or
inimical.” Id. at 364. Because the Framers recognized that “partisanship
and transitory political passions” could induce the Senate to convict or to
acquit, see Randolph D. Moss, 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, 24 Op. O.L.C. 110, 134 (Aug.
18, 2000), they decoupled the judgment at an impeachment trial from
criminal prosecution. Understood in that context, the Impeachment
35
Judgment Clause reflects the “separate and different roles for the
executive’s power of prosecution and the legislature’s impeachment
powers.” Hastings, 716 F. Supp. at 42. Moreover, conditioning the
Executive Branch’s exclusive authority to prosecute a former President—
or any federal officer—on congressional impeachment and removal would
“raise serious separation of powers concerns.” JA.611 n.3.
2. Historical evidence from the time of the founding likewise
confirms that a President was subject to prosecution when no longer in
office. See JA.624-27. Hamilton explained that an impeachment would
not “terminate the chastisement of the offender” because “[a]fter having
been sentenced to a perpetual ostracism from the esteem and confidence,
and honors and emoluments of his country, he will still be liable to
prosecution and punishment in the ordinary course of law.” Federalist
No. 65, at 367; see id. at No. 69, at 384 (Hamilton); id. at No. 77
(Hamilton), at 432 (noting that the President is “at all times liable to
impeachment, trial, [and] dismission from office” as well as “forfeiture of
life and estate by subsequent prosecution in the common course of law”).
Speaking at the North Carolina ratifying convention, James Iredell—
who later became a Supreme Court Justice—noted that “[i]f [the
36
President] commits any crime, he is punishable by the laws of his
country.” 4 Debates on the Constitution 109 (J. Elliot ed. 1891); see
Vance, 140 S. Ct. at 2435 (Thomas, J., dissenting) (discussing Iredell).
The defendant advances two unpersuasive contentions that
historical practice in fact supports a rule of Presidential immunity from
criminal prosecution. First, in adverting to (Br.14-15) “[e]arly
authorities,” the defendant repeats his flawed claim (id. at 9-12) that
decisions and other writings from Chief Justice Marshall and Justice
Story expounded a rule of unreviewable Presidential authority. As
explained, that sweeping claim is unfounded. See supra at 13-18.
Second, he notes that no former President has been criminally prosecuted
(see Br.17-18), but that reflects not a tradition of criminal immunity but
instead the fact that “most presidents have done nothing criminal,
making it difficult to draw inferences from the absence of arrests or
prosecutions.” Prakash, supra, at 82. In any event, the history is not as
uniform as the defendant suggests. President Ford’s pardon of former
President Nixon covering acts during the latter’s Presidency rested on
the assumption that no post-Presidency immunity from criminal
prosecution existed. See Gerald Ford, Presidential Statement at 7-8
37
(Sept. 8, 1974) (granting former President Nixon a “full, free, and
absolute pardon . . . for all offenses against the United States which he,
Richard Nixon, has committed or may have committed or taken part in
during” his Presidency)5; Richard Nixon, Statement by Former President
Richard Nixon at 1 (Sept. 8, 1974) (former President accepting “full and
absolute pardon for any charges which might be brought against me for
actions taken during the time I was President of the United States”). 6
That President Nixon was named as an unindicted coconspirator in a plot
to defraud the United States and obstruct justice, Nixon, 418 U.S. at 687,
entirely refutes the defendant’s efforts (Br.27-28, 41) to distinguish that
case as involving private conduct. See United States v. Haldeman, 559
F.2d 31, 121-22 (D.C. Cir. 1976) (en banc) (per curiam) (explaining that
the offense conduct included efforts “to get the CIA to interfere with the
Watergate investigation being conducted by the FBI” and “to obtain
information concerning the investigation from the FBI and the
Department of Justice”) (internal quotation marks omitted). And
5 https://www.fordlibrarymuseum.gov/library/document/0067/
1563096.pdf.
6 https://www.fordlibrarymuseum.gov/library/document/0019/
4520706.pdf.
38
President Nixon’s acceptance of the pardon represents a “confession of
guilt.” Burdick v. United States, 236 U.S. 79, 90-91 (1915).
3. The defendant also relies on legislative, judicial, and common-
law 7 immunities, but these other immunity doctrines lend no support to
the defendant’s Presidential-immunity claim.
i. The defendant suggests (Br.16-17, 18-19) that common-law
principles of legislative immunity embodied in the Speech or Debate
Clause, U.S. Const. art. I, § 6, cl. 1, inform the immunity analysis here,
but that suggestion lacks support in constitutional text, history, or
purpose. The Framers omitted any comparable text protecting executive
officials, see Vance, 140 S. Ct. at 2434 (Thomas, J., dissenting), and no
reason exists to look to the Speech or Debate Clause as a model for the
defendant’s immunity claim.
In contrast to the defendant’s sweeping claim of immunity for all
Presidential acts within the outer perimeter of his duties, the Speech or
7 The defendant separately discusses the common law (Br.16) and

legislative (id. at 18-19) immunities, but his discussion of the former
relies entirely on the latter. Any separate argument predicated on the
common law alone would fail because “the Presidency did not exist
through most of the development of common law.” Fitzgerald, 457 U.S.
at 748.
39
Debate Clause’s scope is specific: it is limited to conduct “within the
‘sphere of legitimate legislative activity.’” Gravel v. United States, 408
U.S. 606, 624 (1972). “Legislative acts are not all-encompassing,” and
exclude a vast range of “acts in [a Member’s] official capacity,” such as
outreaches to the Executive Branch. Id. Beyond that limitation, the
Clause “does not purport to confer a general exemption . . . from liability
. . . in criminal cases.” Id. at 626. Nor does it “privilege [Members or
aides] to violate an otherwise valid criminal law in preparing for or
implementing legislative acts.” Id. Courts have therefore recognized for
more than 200 years that a Representative “not acting as a member of
the house” is “not entitled to any privileges above his fellow-citizens” but
instead “is placed on the same ground, on which his constituents stand.”
Coffin v. Coffin, 4 Mass. 1, 28-29 (1808); see Rayburn House Off. Bldg.,
497 F.3d at 670 (Henderson, J., concurring in the judgment) (observing
that “it is well settled that a Member is subject to criminal prosecution
and process”). The Speech or Debate Clause does not “make Members of
Congress super-citizens, immune from criminal responsibility.” United
States v. Brewster, 408 U.S. 501, 516 (1972). The defendant’s immunity
40
claim, however, would do just that, absent prior impeachment and
conviction.
The Speech or Debate Clause’s historical origins likewise reveal its
inapplicability in the Presidential context. The Clause arose in response
to successive British kings’ use of “the criminal and civil law to suppress
and intimidate critical legislators.” United States v. Johnson, 383 U.S.
169, 178 (1966); see United States v. Gillock, 445 U.S. 360, 368-69 (1980)
(noting that the English parliamentary privilege arose from “England’s
experience with monarchs exerting pressure on members of Parliament”
in order “to make them more responsive to their wishes”). In one
instance, the King “imprison[ed] members of Commons on charges of
seditious libel and conspiracy to detain the Speaker in the chair to
prevent adjournment,” and the judiciary afforded no relief because “the
judges were often lackeys of the Stuart monarchs.” Johnson, 383 U.S. at
181. That history has no parallel here: the defendant can point to no
record of abuses of the criminal law against former Presidents, and the
Article III judiciary provides a bulwark against any such abuses.
ii. The defendant’s reliance (Br.19-20) on judicial immunity in fact
undermines his broad claim. Both in Fitzgerald, 457 U.S. at 746-48, 751-
41
52, 758, and when subsequently describing Fitzgerald, see Vance, 140 S.
Ct. at 2426, the Supreme Court has repeatedly recognized the parallel
between Presidential immunity from civil damages liability and
comparable immunity for prosecutors and judges. That parallel is
instructive because the Supreme Court has reasoned that,
notwithstanding their absolute immunity from civil liability, prosecutors
and judges are “subject to criminal prosecutions as are other citizens.”
Dennis v. Sparks, 449 U.S. 24, 31 (1980) (discussing judges); see Imbler
v. Pachtman, 424 U.S. 409, 429 (1976) (observing, in a case holding that
prosecutors are absolutely immune from civil damages liability, that the
Supreme Court had “never suggested that the policy considerations
which compel civil immunity for certain governmental officials also place
them beyond the reach of the criminal law”); Mireles v. Waco, 502 U.S. 9,
9, 10 n.1 (1991) (per curiam) (“[A] judge is not absolutely immune from
criminal liability.”); Ex Parte Commonwealth of Virginia, 100 U.S. 339,
348 (1879); see also 28 U.S.C. § 364 (statute addressing the effect of a
federal judge’s felony conviction).
Indeed, courts recognizing immunity from civil liability for certain
officials, such as judges and prosecutors, have operated from the premise
42
that civil immunity did not erect an absolute shield for misconduct
precisely because those officials were subject to criminal prosecution. See
Imbler, 424 U.S. at 428-29 (“We emphasize that the immunity of
prosecutors from liability in suits under § 1983 does not leave the public
powerless to deter misconduct or to punish that which occurs.”); Gillock,
445 U.S. at 372-73 (“[T]he cases in this Court which have recognized an
immunity from civil suit for state officials have presumed the existence
of federal criminal liability as a restraining factor on the conduct of state
officials.”). The Supreme Court accordingly has “never held that the
performance of the duties of judicial, legislative, or executive officers,
requires or contemplates the immunization of otherwise criminal
deprivation of constitutional rights.” O’Shea v. Littleton, 414 U.S. 488,
503 (1974). “On the contrary, the judicially fashioned doctrine of official
immunity does not reach ‘so far as to immunize criminal conduct
proscribed by an Act of Congress.’” Id. (quoting Gravel, 408 U.S. at 627).
The defendant’s counterarguments lack merit. He suggests (Br.19)
that Spalding v. Vilas, 161 U.S. 483 (1896), recognized judicial immunity
from criminal prosecution, but the language in Spalding, a civil case, was
dicta relying on a state case from 1810, see id. at 494 (discussing Yates
43
v. Lansing, 5 Johns. 282 (N.Y. Sup. Ct. 1810), aff’d, 9 Johns. 395 (N.Y.
1811)), and is inconsistent with the Supreme Court’s more recent
pronouncements. Citing United States v. Chaplin, 54 F. Supp. 926 (S.D.
Cal. 1944), the defendant contends (Br.20-21) that criminal prosecutions
for judicial acts are “exceedingly rare” and limited to bribery cases. But
Chaplin—an out-of-circuit district court decision from nearly 80 years
ago that recognized “where a judge violates a criminal statute, he is held
to the same responsibility as any citizen,” 54 F. Supp. at 933—is
apparently the sole case that conferred immunity on a judge facing
criminal prosecution. See 54 F. Supp. at 934-35; see United States v.
Claiborne, 727 F.2d 842, 845 (9th Cir. 1984) (per curiam) (rejecting claim
of immunity from criminal prosecution by defendant-judge); Hastings,
681 F.2d at 710-11 (same); United States v. Isaacs, 493 F.2d 1124, 1143-
44 (7th Cir. 1974) (per curiam) (same). And contrary to the defendant’s
assertion, judges have long been criminally prosecuted for non-bribery
offenses. See, e.g., United States v. Aguilar, 515 U.S. 593, 602-06 (1995)
(upholding defendant-judge’s conviction for disclosure of wiretap
information); United States v. Collins, 972 F.2d 1385, 1392-94, 1415 (5th
Cir. 1992) (upholding defendant-judge’s convictions for, inter alia,
44
obstruction of justice and conspiracy to defraud the United States);
United States v. Manton, 107 F.2d 834, 850 (2d Cir. 1939) (upholding
defendant-judge’s convictions for conspiracy to obstruct the
administration of justice and to defraud the United States). Those cases
establish the proposition, equally applicable to the defendant’s case, that
“[c]riminal conduct is not”—and can never be—“part of the necessary
functions performed by public officials.” Isaacs, 493 F.2d at 1144.
C. Even if separation-of-powers principles limited the federal

prosecution of a former President in some unusual
circumstances, those principles would not require dismissal
here.
Because a former President does not have the sort of sweeping
immunity the defendant advocates, the denial of his motion to dismiss
should be affirmed, and this case should proceed to trial. That
straightforward conclusion would not, however, foreclose the possibility
that a future prosecution could raise difficult questions implicating
cognizable separation-of-powers concerns—if, for example, a prosecution
were to encroach on a President’s foreign-affairs or commander-in-chief
powers, or involve areas where the President’s powers are “both
‘exclusive’ and ‘conclusive’ on the issue.” Zivotofsky v. Kerry, 576 U.S. 1,
45
10 (2015) (citing Youngstown Sheet & Tube, 343 U.S. at 637-38 (Jackson,
J., concurring)).
If those concerns arise, courts can and should address them in the
same manner as other constitutional issues that arise in federal criminal
prosecutions. Like any other criminal defendant, a former President
could assert a constitutional challenge in the district court and could
couple that claim with any relevant President-specific objections to
liability.8 Any rulings could be reviewed on appeal from a final judgment.
Cf. United States v. Rostenkowski, 59 F.3d 1291, 1300 (D.C. Cir. 1995)
(where an indictment is “untainted” by “Speech or Debate material,” a
defendant can object “at such point(s) in the trial” that the government
seeks admission of any “protected material into evidence”); United States
v. Cisneros, 169 F.3d 763, 771 (D.C. Cir. 1999) (“[T]here will be time
enough in an appeal from the final judgment to vindicate the separation
of powers.”); accord In re al-Nashiri, 791 F.3d 71, 80 (D.C. Cir. 2015).
8Cf. David J. Barron, Office of Legal Counsel, Applicability of

Federal Criminal Laws and the Constitution to Contemplated Lethal
Operations Against Shaykh Anwar al-Aulaqi (July 16, 2010) (addressing
lawfulness of conduct where the President was acting pursuant to his
commander-in-chief powers).
46
In a truly “exceptional situation[],” a court could consider
recognizing a novel form of criminal immunity, if a defendant could
demonstrate that doing so would be “essential for the conduct of the
public business.” Butz v. Economou, 438 U.S. 478, 507 (1978); see
Forrester v. White, 484 U.S. 219, 224 (1988). By necessity, however, any
such novel immunity would have to be narrower than the civil immunity
recognized in Fitzgerald, since it would need to “vindicate the public
interest in an ongoing criminal prosecution,” Fitzgerald, 457 U.S. at 754,
and reflect courts’ “primary constitutional duty . . . to do justice in
criminal prosecutions,” Nixon, 418 U.S. at 707, as opposed to the “lesser
public interest” at issue in a “merely private suit for damages,”
Fitzgerald, 457 U.S. at 754 & n.37.
The Court need not address those issues here, however. The
indictment alleges a conspiracy to overturn the presidential election
results, JA.26, through targeting state officials, id. at 32-44; creating
fraudulent slates of electors in seven states, id. at 44-50; leveraging the
Department of Justice in the effort to target state officials through deceit
and to substitute the fraudulent elector slates supporting his personal
candidacy for the legitimate ones, id. at 50-54; attempting to enlist the
47
Vice President to fraudulently alter the election results during the
certification proceeding on January 6, 2021, and directing supporters to
the Capitol to obstruct the proceeding, id. at 55-62; and exploiting the
violence and chaos that transpired at the United States Capitol on
January 6, 2021, id. at 62-65. The indictment thus alleges conspiracies
to advance the defendant’s prospects as a candidate for elective office in
concert with private persons as well as government officials, cf.
Blassingame, 87 F.4th at 4 (the President’s conduct falls beyond the outer
perimeter of his official duties if it can only be understood as having been
undertaken in his capacity as a candidate for re-election), and the
defendant offers no plausible argument that the federal government
function and official proceeding that he is charged with obstructing
establish a role—much less an exclusive and conclusive role—for the
President, see Georgia v. Meadows, No. 23-12958, 2023 WL 8714992, at
*11 (11th Cir. Dec. 18, 2023); United States v. Rhodes, 610 F. Supp. 3d
29, 41 (D.D.C. 2022) (Congress and the Vice President in his role as
President of the Senate carry out the “laws governing the transfer of
power”) (internal quotation marks omitted). Just as the Constitution
“confers no power in the President to receive bribes,” Walter Dellinger,
48
Application of 28 U.S.C. § 458 to Presidential Appointments of Federal
Judges, 19 Op. O.L.C. 350, 357 n.11 (Dec. 18, 1995), so too it does not
afford a President an unreviewable authority or license to conspire to
obstruct a federal governmental function through fraud and dishonesty,
conspire and attempt to obstruct a congressional proceeding, and
conspire to violate the constitutional rights of others.
Accordingly, the prosecution here raises no separation-of-powers
concerns. To the contrary, a scheme to thwart the peaceful transfer of
power contradicts the most basic constitutional check on executive
abuses: A President comes to power by winning an election, not by
subverting the results of the vote. See U.S. Const. art. II, § 1, cls. 1, 2
(President “shall hold his office during the Term of four years” based on
an election carried out under the procedures set forth in the
Constitution). Whatever hypothetical concerns might arise in a future
case do not affect the outcome here.
D. Even if a former President were entitled to immunity from

criminal prosecution comparable to his immunity from civil
liability, dismissal is not warranted here.
Dismissal is at a minimum unwarranted because the defendant has
no remotely viable claim that all of the indictment’s allegations involve
49
acts “within the ‘outer perimeter’ of his official responsibility.”
Fitzgerald, 457 U.S. at 756. Rather, the indictment alleges substantial
conduct as a part of the charged conspiracies that goes well beyond any
plausible claim of official acts. This Court has held that a “sitting
President running for a second term . . . is not carrying out the official
duties of the presidency” and thus “cannot qualify for official-act
immunity” when he acts “as [an] office-seeker, not office-holder.”
Blassingame, 87 F.4th at 4-5. A former President therefore is not entitled
to even civil immunity for acts done while in office that “viewed
objectively and in context may reasonably be understood only as re-
election campaign activity.” Id. at 21-22. Here, the defendant is alleged
to have conspired with and directed individuals outside the government
to facilitate his effort, as a candidate, to subvert the election results, see
JA.434, thus placing that conduct beyond the outer perimeter of
Presidential responsibilities. The same is true for the allegations
describing the conspirators’ efforts to organize fraudulent electoral slates
and cause them to transmit false certificates to Congress in anticipation
of the certification proceeding on January 6, 2021. See JA.44-50. Again,
those alleged acts were carried out by and on behalf of the defendant in
50
his capacity as a candidate, and the extensive involvement of private
attorneys and campaign staff in procuring the fraudulent slates as
alleged in the indictment underscores that those activities were not
within the outer perimeter of the office of the Presidency. Cf.
Blassingame, 87 F.4th at 17 (“[A] sitting President, just like the
candidates he runs against, is subject to civil damages liability for his
actions constituting re-election campaign activity.”). Because the
indictment’s allegations substantially fall outside the outer perimeter of
the president’s powers even under the broadest understanding of that
term, the remedy of dismissal is inappropriate.
The defendant’s counterarguments rest entirely on
mischaracterization of the indictment. For example, the defendant
identifies (Br.42) one of the “five types of conduct” as his “public
statements and tweets about alleged fraud and irregularity in the federal
election.” That description glosses over the specific allegations about how
the defendant as a candidate used false statements to undermine the
election’s integrity, see supra at 5, and ignores that even if certain
statements were otherwise protected in isolation, “constitutionally
protected speech may nevertheless be an overt act in a conspiracy
51
charge.” United States v. Donner, 497 F.2d 184, 192 (7th Cir. 1974); see
also Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993) (“[A] defendant’s
previous declarations or statements [are] commonly admitted in criminal
trials subject to evidentiary rules dealing with relevancy, reliability, and
the like.”).
Similarly, the defendant’s conclusory assertions that the
allegations involve his “official duties” rely on his recasting of what the
indictment in fact alleges. In his view, for example, the indictment
encompasses mere “communications with state officials,” Br.44, when the
actual allegations detail “knowingly false claims of election fraud aimed
at interfering with the ascertainment of and voting by” electors made by
the defendant and his coconspirators in several targeted states as part of
his campaign to retain the Presidency. See JA.24-26. The defendant’s
further claim to have been carrying out his “official duties” entirely
ignores that, as a “candidate for re-election,” id. at 24, he is alleged to
have conspired to “overturn the legitimate results of” a “presidential
election,” id. at 26, and to have done so with at least five others who had
absolutely no role in the federal government, including private attorneys
and a political consultant, id. at 26-27. While the defendant is presumed
52
innocent and the Government will have to carry its burden to prove the
indictment’s allegations at trial, the defendant cannot reframe the
allegations into a version that more conveniently supports his legal
arguments.
II. The Defendant’s Acquittal at an Impeachment Trial Does Not Bar

This Prosecution.
The defendant contends (Br.46-55) that the Impeachment
Judgment Clause and principles of double jeopardy supply an additional
barrier to his prosecution. That contention is incorrect.
1. a. As noted above, see supra at 30-36, the Impeachment
Judgment Clause’s two parts reflect its related objectives. The first
clause—which limits “Judgment in Cases of Impeachment” to removal
and disqualification, U.S. Const. art. I, § 3, cl. 7—empowers Congress to
impose a political sanction for removal without enabling the Legislative
Branch to exact criminal punishment. Ensuring that Congress could not
exact criminal penalties following impeachment distinguished the
American approach from Britain, where Parliament could impose “a wide
array of criminal penalties, including fines, imprisonment, and even
execution.” Randolph D. Moss, Whether a Former President May Be
Indicted and Tried for the Same Offenses for Which He Was Impeached
53
by the House and Acquitted by the Senate, 24 Op. O.L.C. 110, 120 (Aug.
18, 2000). The second clause—which “nevertheless” subjects the officer
in question to “Indictment, Trial, Judgment and Punishment, according
to Law,” U.S. Const. art. I, § 3, cl. 7—clarifies that, although Congress
may not impose criminal punishment, the officer in question, including a
former President, is “liable to prosecution and punishment in the
ordinary course of law.” Federalist No. 69, at 384 (Hamilton). Read
together, those two clauses constrain the range of potential sanctions
available to Congress following impeachment but place no corresponding
limits beyond those prescribed “according to Law” on post-impeachment
criminal prosecution. The clauses therefore preclude an impeached
officer from invoking his Senate conviction to bar his subsequent criminal
prosecution but do not suggest that the absence of a conviction provides
the officer with any sort of shield.
That straightforward textual reading of the Impeachment
Judgment Clause finds ample historical support. For example, James
Wilson, a participant at the Constitutional convention and later a
Supreme Court Justice, responded in the 1787 Pennsylvania ratification
convention to the argument that the Senate would be unlikely to impeach
54
and remove through Senate conviction fellow Senators by observing that,
“Though they may not be convicted on impeachment before the Senate,
they may be tried by their country; and if their criminality is established,
the law will punish.”9 2 The Documentary History of the Ratification of
the Constitution 492 (Merrill Jensen et al., eds. 1976). Similarly, Edward
Pendleton, who served as President of the Virginia Supreme Court and
the Virginia ratifying convention, observed in a letter to James Madison
that the impeachment power “is in the hands of the House of
Representatives, who will not use it in the case Supposed, or if they do,
and meet the obstruction, may yet resort to the courts of Justice, as an
Acquital [sic] would not bar that remedy.” See id. at 1773 (Letter from
Edmund Pendleton to James Madison, Oct. 8, 1787). And that view was
likewise shared by Representative Samuel Dana, a participant in the
first federal impeachment trial—of Senator William Blount of Tennessee
in 1798—who observed that an impeachment conviction “has no
9The defendant’s citation (Br.51) to Wilson’s statement that a

President is “amenable” to the laws in “his private character as a citizen”
supports the conclusion that a former President enjoys no immunity from
criminal prosecution in his personal capacity and is entirely consistent
with Wilson’s view at the Pennsylvania ratification convention and not
inconsistent with Hamilton’s views. See infra at 60-61.
55
connexion [sic] with punishment or crime, as, whether a person tried
under an impeachment be found guilty or acquitted, he is still liable to a
prosecution at common law.” 9 Annals of Congress 2475 (1798).
The defendant’s dismissal (Br.48-49) of Justice Joseph Story’s view
as “baseless” is unmerited. Story explained that the Constitution
separated an impeachment trial (with its exclusive remedies of removal
and disqualification) from a trial “in the common tribunals of justice” to
ensure that “a second trial for the same offence could be had, either after
an acquittal, or a conviction in the court of impeachments.” 2 Joseph
Story, Commentaries on the Constitution of the United States §§ 780-81
(1833). Otherwise, “if no such second trial could be had, then the grossest
official offenders might escape without any substantial punishment, even
for crimes, which would subject their fellow citizens to capital
punishment.” Id. at § 780. That observation remains true—and
unrebutted—today.
b. Two structural considerations bolster the textual and historical
evidence demonstrating that the Impeachment Judgment Clause does
not bar the criminal prosecution of a former president acquitted at a
Senate trial.
56
First, “[i]mpeachment and criminal prosecution serve entirely
distinct goals.” Indicted and Tried for the Same Offenses, 24 Op. O.L.C.
at 130; see Hastings, 716 F. Supp. at 42. Impeachment provides
Congress with a political check on the Executive Branch to address
through removal the “misconduct of public men” for “injuries done
immediately to the society itself.” Federalist No. 65, at 364. The
Constitution’s limitation of Congress’s sanction to removal and
disqualification reflects the view that “the national legislature is not to
be trusted with dispensing criminal punishments, sanctions aimed not at
protecting the integrity of the government’s operations but at penalizing
individuals by taking away their life, liberty, or property.” Indicted and
Tried for the Same Offenses, 24 Op. O.L.C. at 130. By contrast, the
Executive Branch is constitutionally entrusted with the “power of
prosecution,” Hastings, 716 F. Supp. at 42, to enforce the violation of
congressionally passed penal statutes. Neither branch’s independent
action, however, can “effectively prevent,” id., the other branch from
acting.
Second, acquittal in a Senate impeachment trial may reflect a
technical or procedural determination rather than a factual conclusion
57
that the official in question did not commit the alleged acts. Indicted and
Tried for the Same Offenses, 24 Op. O.L.C. at 131. That is true of the
defendant’s impeachment proceedings. See JA.407-08 (explaining that
at least 31 of the 43 Senators who voted to acquit the defendant explained
that their decision to do so rested in whole or in part on their agreement
with the defendant’s argument that the Senate lacked jurisdiction to try
him because he was no longer in office). Several Senators who voted
against conviction on jurisdictional grounds emphasized the defendant’s
criminal responsibility for the events of January 6. See, e.g., 167 Cong.
Rec. S736 (daily ed. Feb. 13, 2021) (Sen. McConnell) (explaining that his
vote was based on the view that the Senate lacked jurisdiction and
stating that the defendant “is still liable for everything he did while he
was in office, “as an ordinary citizen”; and noting that “[w]e have a
criminal justice system in this country”). Those votes and statements
make clear that, to the extent those considerations played a role,
Senators were not adjudicating the defendant’s factual guilt, but rather
were relying on a legal judgment about the scope of the Senate’s
jurisdiction, a “political judgment” about what constitutes “high crimes
and misdemeanors,” and a practical judgment on whether removal and
58
disqualification best serve the country “at a particular moment in our
nation’s history.” Indicted and Tried for the Same Offenses, 24 Op.
O.L.C. at 132-33.
c. The defendant’s counterarguments fail. First, the defendant’s
reliance (Br.46-48) on an asserted negative implication—that the phrase
“Party convicted” in the Impeachment Judgment Clause requires that an
officer be both impeached and convicted before that officer may face
criminal prosecution—is misplaced. The prior portion of the Clause
limits the permissible consequences that the Senate may impose upon
conviction. The portion of the Clause on which the defendant relies then
makes clear that such a party is subject to criminal prosecution, but it
does not speak to acquittal at all. In any event, the asserted negative
implication could not overcome the historical evidence and structural
considerations indicating that the Impeachment Judgment Clause was
intended to limit congressional sanctions for impeachment to removal
and disqualification from office, not to preclude the prosecution of an
impeached but not convicted officer. See Thompson v. Trump, 590 F.
Supp. 3d 46, 86-87 (D.D.C. 2022).
59
Second, the defendant repeatedly contends (Br.6, 13, 14-15, 26, 50-
51) that Hamilton’s writings support his position. Hamilton’s essays
stressed the function of impeachment as a safeguard against the abuse
of power by an incumbent President—who would also be liable to
criminal punishment after removal or departure from office. But nothing
in his writings addressed what the defendant seeks to establish: that
acquittal by the Senate would forestall the criminal prosecution of a
former President. Instead, Hamilton explained why the Supreme Court
was not the proper body to serve as an impeachment court, Federalist
No. 65, how a President differed from the British monarch, Federalist
No. 69, and that, despite the President’s formidable powers, strong
constitutional safeguards existed to protect the Nation, Federalist No. 77.
Hamilton’s inventory of constitutional protections did not suggest that a
former President could not be prosecuted if he was impeached but not
convicted. Rather, the strong current that runs through all three of
Hamilton’s essays is that a former President, unlike a king, is amenable
to “the common course of law.” Federalist No. 77, at 432.
2. The defendant suggests (Br.46) that “[p]rinciples of Double
Jeopardy” underpin his claim that his acquittal in the Senate forecloses
60
any future prosecution. But that vague invocation of double-jeopardy
principles falters for at least two reasons.
First, the penalty following impeachment—removal and
disqualification from office—is not criminal and thus does not implicate
double-jeopardy principles. The Double Jeopardy Clause does not
preclude the imposition of any penalty “that could, in common parlance,
be described as punishment”; instead, it guards only against “imposition
of multiple criminal punishments for the same offense.” Hudson v.
United States, 522 U.S. 93, 99 (1997) (internal quotation marks omitted).
To determine whether a penalty is criminal or civil proceeds in two steps.
Courts first assess whether the legislature, “in establishing the
penalizing mechanism, indicated either expressly or impliedly a
preference” for labelling the penalty as civil or criminal. United States
v. Ward, 448 U.S. 242, 248 (1980); cf. Johnson v. Quander, 440 F.3d 489,
501 (D.C. Cir. 2006). Second, even where the legislature intended to
enact a civil penalty, courts must determine whether that penalty is
nonetheless “so punitive either in purpose or effect . . . as to transform
what was clearly intended as a civil remedy into a criminal penalty.”
Hudson, 522 U.S. at 99 (brackets and internal quotation marks omitted).
61
The Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144
(1965), set out several factors as “useful guideposts,” Hudson, 522 U.S. at
99, to determine whether a nominally civil penalty is criminal. 372 U.S.
at 168-69; see Johnson, 440 F.3d at 502-03 (applying Mendoza-Martinez
factors and concluding that statute requiring DNA collection was
punitive in “neither purpose nor effect”).
Rather than try to establish that removal and disqualification from
office is a criminal penalty, the defendant simply assumes (Br.47) the
“criminal nature of the impeachment process.” That assumption is
misguided. The historical evidence above showing that the Framers
intended that Congress could not impose the type of criminal sanctions
following impeachment that the British Parliament could exact, see
supra at 53-54, indicates that the Framers did not intend to create a
criminal sanction. Indeed, the Framers initially considered adopting
language in the Constitution that provided that “No person shall be
subject, except in cases of impeachment, to more than one punishment or
one trial for the same offence.” See Indicted and Tried for the Same
Offenses, 24 Op. O.L.C. at 134. But the Framers deleted the reference to
impeachment when they added the phrase “life or limb” to denote
62
criminal punishment, making the exception for impeachment
superfluous because that remedy clearly did not risk criminal
punishment. See id. at 134-35. That history underscores the common-
sense intuition that being terminated from, or prevented from obtaining,
a job is qualitatively different than facing a prison term or execution. But
even if that were not so, the Mendoza-Martinez factors overwhelmingly
support a finding that removal and disqualification from office does not
constitute a criminal penalty. See Indicted and Tried for the Same
Offenses, 24 Op. O.L.C. at 139-48 (applying Mendoza-Martinez factors to
removal and disqualification following impeachment).
Second, even if the Double Jeopardy Clause (or analogous principles
derived from it, Br.54 n.7) applied, it would not bar the defendant’s
prosecution. The Clause protects against multiple punishments for the
same offense. See Missouri v. Hunter, 459 U.S. 359, 365-66 (1983). But
the Double Jeopardy Clause “is not implicated simply because a criminal
charge involves ‘essentially the same conduct’ for which a defendant has
previously been punished.” Hudson, 522 U.S. at 107 (Stevens, J.,
concurring) (citing United States v. Dixon, 509 U.S. 688, 696, 704 (1996)).
Instead, whether two offenses are the same for double-jeopardy purposes
63
requires ascertaining whether each requires proof of an element that the
other does not. See Blockburger v. United States, 284 U.S. 299, 304
(1932). It is not enough that there may be some overlap between the
conduct charged in each case.
Any double-jeopardy claim here would founder in light of these
principles. Without support, the defendant asserts that his Senate
acquittal and the indictment in this case involve “the same or closely
related conduct.” Br.52. Not so. The single article of impeachment
alleged a violation of “Incitement of Insurrection,” H.R. Res. 24, 117th
Cong. at 2 (Jan. 11, 2021) (capitalization altered), and charged that the
defendant had “incit[ed] violence against the Government of the United
States,” id. at 3. The most analogous federal statute is 18 U.S.C. § 2383,
which prohibits “incit[ing] . . . any rebellion or insurrection against the
authority of the United States or the laws thereof.” A violation of Section
2383 would therefore require proof that the violence at the Capitol on
January 6, 2021, constituted an “insurrection against the authority of the
United States or the laws thereof” and that the defendant incited that
insurrection. Incitement, in turn, requires proof that the speaker’s words
were both directed to “producing imminent lawless action” and “likely to
64
incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447
(1969) (per curiam); NAACP v. Claiborne Hardware Co., 458 U.S. 886,
927-28 (1982). None of the offenses charged here—18 U.S.C. § 371, 18
U.S.C. § 1512(c)(2) and (k), and 18 U.S.C. § 241—has as an element any
of the required elements for an incitement offense. And the elements of
the charged offenses—e.g., conspiring to defeat a federal governmental
function through deceit under Section 371, obstruct an “official
proceeding” under Section 1512, and deprive persons of rights under
Section 241—are nowhere to be found in the elements of a violation of
Section 2383 or any other potential incitement offense. The mere fact
that some of the conduct on which the impeachment resolution relied is
related to conduct alleged in the indictment does not implicate the Double
Jeopardy Clause or its principles. See Dixon, 509 U.S. at 696.
CONCLUSION
For the foregoing reasons, the Court should affirm the district
court’s order denying the defendant’s motions to dismiss on Presidential-
immunity and double-jeopardy grounds. For the reasons given in the
Government’s motion to expedite appellate review, including the
imperative public importance of a prompt resolution of this case, the
65
Government respectfully requests the Court to issue the mandate five
days after the entry of judgment. Such an approach would appropriately
require any party seeking further review to do so promptly.
Respectfully submitted,
J.P. COONEY JACK SMITH

Deputy Special Counsel Special Counsel
MICHAEL R. DREEBEN MOLLY GASTON

RAYMOND N. HULSER THOMAS P. WINDOM
Counselors to the Special Counsel Senior Assistant Special Counsels
JOHN M. PELLETTIERI /S/ JAMES I. PEARCE

CECIL W. VANDEVENDER Assistant Special Counsel
Assistant Special Counsels U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Rm. B-206
Washington, D.C. 20530
66
CERTIFICATE OF SERVICE
In accordance with Fed. R. App. P. 25(d), the undersigned counsel
of record certifies that the foregoing Answering Brief for the United
States was this day served upon counsel for appellant, by notice of
electronic filing with the District of Columbia Circuit CM/ECF system.
DATED: DECEMBER 30, 2023
S/ JAMES I. PEARCE
67
CERTIFICATE OF COMPLIANCE
WITH TYPEFACE AND LENGTH LIMITATIONS
1. This brief complies with the type-volume limitations of Fed. R.
App. P. 32(a)(7)(B) because it contains 12,997 words, excluding the parts
of the brief exempted by Fed. R. App. P. 32(f).
2. This brief complies with the typeface requirements of Fed. R.
App. P. 32(a)(5) and the type style requirements of Fed. R. App. P.
32(a)(6) because it has been prepared in a proportionally spaced typeface
using Microsoft Word for Office 365 in Century 14-point font in text and
Century 14-point font in footnotes.
3. This brief complies with the privacy redaction requirement of Fed
R. App. 25(a)(5) because it contains no personal data identifiers.
4. The digital version electronically filed with the Court on this day
is an exact copy of the written document to be sent to the Clerk; and
5. This brief has been scanned for viruses with the most recent
version of McAfee Endpoint Security, version 10.7, which is continuously
updated, and according to that program is free of viruses.
/S/ JAMES I. PEARCE

68

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USCA Case #23-3228 Document #2033810 Filed: 12/30/2023 Page 1 of 82

ORAL ARGUMENT SCHEDULED FOR JANUARY 9, 2024

UNITED STATES OF AMERICA

ANSWERING BRIEF FOR THE UNITED STATES

J.P. COONEY JACK SMITH

MICHAEL R. DREEBEN MOLLY GASTON

JOHN M. PELLETTIERI JAMES I. PEARCE

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to D.C. Cir. R. 28(a)(1), the undersigned certifies that:

A. Parties and Amici

(defendant-appellant). Amicus briefs have been filed in this Court by the

following entities: American Oversight; Former Government Officials

and Constitutional Lawyers; and Former Officials in Five Republican

B. Rulings Under Review

The defendant seeks review of the order of the district court

(Chutkan, J.) denying his motions to dismiss based on Presidential

immunity and principles of double jeopardy. JA.599-641, 649-51.

/s/ James I. Pearce

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED

TABLE OF AUTHORITIES ..................................................................... iv

GLOSSARY OF ABBREVIATIONS ......................................................xiii

JURISDICTIONAL STATEMENT ........................................................... 2

STATEMENT OF THE ISSUES ............................................................... 3

STATEMENT OF THE CASE .................................................................. 3

I. Factual and Procedural Background ...................................... 3

II. The District Court’s Order ...................................................... 6

SUMMARY OF ARGUMENT ................................................................... 7

I. The Defendant Has No Immunity from Federal

A. Separation-of-powers analysis provides no support

B. Constitutional text, historical practice, and other

C. Even if separation-of-powers principles limited the

unusual circumstances, those principles would not

D. Even if a former President were entitled to

II. The Defendant’s Acquittal at an Impeachment Trial

CERTIFICATE OF COMPLIANCE ........................................................ 67

Abney v. United States,

Anderson v. United States,

Berger v. United States,

Blockburger v. United States,

Burdick v. United States,

Cheney v. U.S. Dist. Court for Dist. of Columbia,

Dames & Moore v. Regan,

Ex Parte Commonwealth of Virginia,

Gravel v. United States,

Hammerschmidt v. United States,

Hastings v. United States Senate,

Hudson v. United States,

Kendall v. United States,

NAACP v. Claiborne Hardware Co.,

Nixon v. Adm’r of Gen. Servs.,

Nixon v. United States,

Screws v. United States,

Seila Law LLC v. CFPB,

Trump v. Mazars USA, LLP,