It is the first time
Currently, there were 4 impeachment trials of presidents:
- Johnson in 1868, over longstanding arguments
- Clinton in 1998/99, over an affair
- Trump in 2019/20, over interference with the Ukrainian Government
- Trump in 2021, over the riots of January 6th 2021, including alleged election fraud
As one will easily see, this is the first case that ever has, after an impeachment trial, brought any such argument.
The argument brought by Trump's lawyers has no merit
Double jeopardy is banned in the fifth amendment of the constitution. It reads:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The bolded sentence is the alleged core of the argument, but also its biggest weakness.
The problem with framing the impeachment trial as "jeopardy of life or limb" is, that the impeachment trial can only have a single outcome in case of conviction: removal from office. Removal from office does not put someone in danger of being executed or incarcerated, so the senate trial does not attach the required jeopardy in the first place. As such, the Georgia trial is the first trial that puts Donald Trump in "jeopardy of life or limb".
And there's a second problem: "the same offence" means being tried twice for the same act using the same laws. However, even if one were to assume that the senate trial was giving jeopardy of life or limb, he was not tried in any way under Georgia law but a quite different offence in a court that is not Georgia. Georgia is sovereign: A person can be tried by both federal and state courts for the same act for violating different laws. That's the dual sovereignty doctrine. In fact, Palko v. Connecticut, 302 U.S. 319 (1937) and United States v. Lanza
260 U.S. 377 (1922) both explicitly rejected that the double jeopardy clause bolded above barred a state from bringing a case where unsuccessful federal charges had been brought, and vice versa. Lanza brings it to a point with:
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We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject matter within the same territory. Each may, without interference by the other, enact laws to secure prohibition, with the limitation that no legislation can give validity to acts prohibited by the amendment. Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.
As such, the double jeopardy argument is utterly meritless, as Donald Trump has never been adjudicated in any court before, neither a federal nor a Georgia court for any federal crime or Georgia crime arising from the acts of alleged manipulation of the election.
He was tried in the Senate - which is not a court of law. It is explicitly not a judicial process but a political one that wears the trappings of a judicial process. As such, the prosecution has not exhausted its bite at the apple.
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