There Was No Adequate Non-Criminal Alternative to Prosecution

¶Given the strong federal interests in holding Mr. Trump accountable described above, the Office could not identify any adequate non-criminal alternative to prosecution. To be sure, because he was President at the time of his alleged offenses, Mr. Trump was subject to impeachment and was in fact impeached (though he was not convicted). Impeachment, however, was never intended to be a substitute for criminal prosecution. "[T]he Framers recognized that most likely there would be two sets of proceedings for individuals who commit impeachable offenses-the impeachment trial and a separate criminal trial." Nixon v. United States, 506 U.S. 224,²³⁴²³⁴ SCO-02244118 at 22 (Remarks by Mr. Trump at Save America Rally Ol /06/2021 ). (1993). The Impeachment Judgment Clause itself expressly contemplates separate proceedings, stating that the punishment for 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." U.S. CONST. art. I, § 3, cl. 7.

¶Not only are impeachment and prosecution separate and distinct proceedings, they apply different standards and pursue different objectives. When Congress decides whether a President should be impeached and convicted, that process does not depend on rigorously adjudicating facts and applying law, or on finding a criminal violation. Instead, the impeachment process is, by design, an inherently political remedy for the dangers to governance posed by an office holder who has committed "Treason, Bribery, or other high Crimes and Misdemeanors." U.S. CONST. art. II, § 4. Congress may decide not to impeach or convict for reasons that have little or no connection to the nature of the evidence of the officer's culpable conduct. For example, the political alignment of Congress may prevent impeachment and conviction, without regard to the officer's conduct. Indeed, prior to 2020, no Senator had ever voted to convict an impeached President of the same political party. And in cases like this one, where the President has left office by the time an impeachment trial occurs, Senators may question their authority to convict regardless of the egregiousness of the conduct at issue. See, e.g.,¹⁶⁷¹⁶⁷ See ECF No. 252 at 48-49 & nn.251-254, 51-52 & n.274, 56-57 & nn.302-307, 58 & n.312, 65 & n.352; SCO-02341381 (Fraudulent "Arizona's Electoral Votes for President and Vice President"); SCO-02341386 (Fraudulent "Georgia's Electoral Votes for President and Vice President"); SCO-02341398 (Fraudulent "Michigan's Electoral Votes for President and Vice President"); SCO-02341415 (Fraudulent "Nevada's Electoral Votes for President and Vice President"); SCO-02341409 (Fraudulent "New Mexico's Electoral Votes for President and Vice President"); SCO-02341435 (Fraudulent "Pennsylvania's Electoral Votes for President and Vice President"); SCO-02341449 (Fraudulent "Wisconsin's Electoral Votes for President and Vice President"); SCO-00310626 (Co-Conspirator 5 memo 12/06/2020); SCO-00039408 (Email from Co-Conspirator 5 12/08/2020); SCO-00309946 (Email from Co-Conspirator 5 to Co-Conspirator 1 12/13/2020); SCO-12184337, SCO-12184338 (Email from Co-Conspirator 2 to Co-Conspirator 5 and Co-Conspirator 6, with attachment 12/23/2020) (memo); SCO-12101300, SCO-12101301 (Email from Co-Conspirator 2 to Co-Conspirator 6, with attachment O1/03/2021) (memo).Show full note CONG. REc. S736 (daily ed. Feb. 13, 2021) (statement of Sen. McConnell).

¶During Mr. Trump's impeachment trial, his counsel insisted that the outcome of the proceeding would have no bearing on any future criminal prosecution, stating, "Clearly, a former civil officer who is not impeached is subject to" criminal prosecution.¹⁶⁷¹⁶⁷ See ECF No. 252 at 48-49 & nn.251-254, 51-52 & n.274, 56-57 & nn.302-307, 58 & n.312, 65 & n.352; SCO-02341381 (Fraudulent "Arizona's Electoral Votes for President and Vice President"); SCO-02341386 (Fraudulent "Georgia's Electoral Votes for President and Vice President"); SCO-02341398 (Fraudulent "Michigan's Electoral Votes for President and Vice President"); SCO-02341415 (Fraudulent "Nevada's Electoral Votes for President and Vice President"); SCO-02341409 (Fraudulent "New Mexico's Electoral Votes for President and Vice President"); SCO-02341435 (Fraudulent "Pennsylvania's Electoral Votes for President and Vice President"); SCO-02341449 (Fraudulent "Wisconsin's Electoral Votes for President and Vice President"); SCO-00310626 (Co-Conspirator 5 memo 12/06/2020); SCO-00039408 (Email from Co-Conspirator 5 12/08/2020); SCO-00309946 (Email from Co-Conspirator 5 to Co-Conspirator 1 12/13/2020); SCO-12184337, SCO-12184338 (Email from Co-Conspirator 2 to Co-Conspirator 5 and Co-Conspirator 6, with attachment 12/23/2020) (memo); SCO-12101300, SCO-12101301 (Email from Co-Conspirator 2 to Co-Conspirator 6, with attachment O1/03/2021) (memo).Show full note CONG. REC. S607 (daily ed. Feb. 9, 2021 ); see id. at S601 (noting that if a President "committed a criminal offense" then "[a]fter he is out of office, you go and arrest him," adding, "[t]he Department of Justice does know what to do with such people"). Senators who voted to acquit Mr. Trump expressed a similar view. See, e.g.,¹⁶⁷¹⁶⁷ See ECF No. 252 at 48-49 & nn.251-254, 51-52 & n.274, 56-57 & nn.302-307, 58 & n.312, 65 & n.352; SCO-02341381 (Fraudulent "Arizona's Electoral Votes for President and Vice President"); SCO-02341386 (Fraudulent "Georgia's Electoral Votes for President and Vice President"); SCO-02341398 (Fraudulent "Michigan's Electoral Votes for President and Vice President"); SCO-02341415 (Fraudulent "Nevada's Electoral Votes for President and Vice President"); SCO-02341409 (Fraudulent "New Mexico's Electoral Votes for President and Vice President"); SCO-02341435 (Fraudulent "Pennsylvania's Electoral Votes for President and Vice President"); SCO-02341449 (Fraudulent "Wisconsin's Electoral Votes for President and Vice President"); SCO-00310626 (Co-Conspirator 5 memo 12/06/2020); SCO-00039408 (Email from Co-Conspirator 5 12/08/2020); SCO-00309946 (Email from Co-Conspirator 5 to Co-Conspirator 1 12/13/2020); SCO-12184337, SCO-12184338 (Email from Co-Conspirator 2 to Co-Conspirator 5 and Co-Conspirator 6, with attachment 12/23/2020) (memo); SCO-12101300, SCO-12101301 (Email from Co-Conspirator 2 to Co-Conspirator 6, with attachment O1/03/2021) (memo).Show full note CONG. REc. S736 (daily ed. Feb. 13, 2021) (statement of Sen. McConnell) (stating that Mr. Trump "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"). Thus, even if Mr. Trump had been convicted by the Senate, political accountability, in the form of impeachment, would not have been an adequate alternative for criminal accountability, especially considering the scope of Mr. Trump's offenses and the substantial federal interests they targeted.