After the Justice Department announced Friday it was appointing Jack Smith as special counsel to handle two cases involving former president Trump, Trump has begun laying out his legal defense. Trump is facing two potential prosecutions — a very serious offense, attempting to secure an unelected second term, for which his legal liability is murky, and a less serious but still grave charge, stealing and refusing to surrender classified government documents, for which his culpability seems ironclad.
Trump expressed confidence that he will escape charges — which, to be fair, he has managed to do repeatedly throughout his career despite having committed a string of crimes beginning in the 1970s.
Trump’s first defense is that, because he was previously impeached twice by Congress but not removed from office, prosecuting him for stealing documents would be “double jeopardy”:
They tried it, and we went through the whole process, and we won. We went through the whole process. So wouldn’t this sort of be, a — then you take a look at the other. We went through two of them. Isn’t this sort of like double jeopardy? In the old days we used to call it “double jeopardy.”
Trump may be remembering the phrase “double jeopardy” from watching television in the old days, but it isn’t an antiquated term. (The Supreme Court extended the principle in a 2019 ruling.) It means you can’t be charged twice for the same crime.
There is some popular misunderstanding of the double-jeopardy principle. The 1999 movie Double Jeopardy starred Ashley Judd as a woman whose husband faked his own death and framed her for the murder. In prison, a fellow inmate advises her that once she gets out, she can find and kill her husband and avoid prosecution because she can’t be charged for the same crime twice. (Hence the title of the film.) This advice is wrong — killing her husband years later would be a different crime, for which she could absolutely be charged — and in general you should not commit felonies on the basis of free legal advice you heard from a fellow inmate.
Even so, this comically mistaken grasp of double jeopardy is less ridiculous than Trump’s notion that it means that, having beaten the rap for one crime (or in his case, many crimes), you are free to commit more crimes without prosecution. That would be a gigantic loophole in the legal system.
Trump also told Fox News that because the appointment of a special counsel is unfair, “I am not going to partake in it. I’m not going to partake in this.”
If it were possible for a criminal suspect to simply decline to participate in the process — like an extracurricular activity you simply quit — then this would also open up a gigantic loophole in the legal system. In fact, the Justice Department does not give criminal suspects an option of whether or not to partake in being charged with a crime.
Trump’s instinctive response that he “won’t partake” in charges reveals so much about his view of the legal system. He believes the law is optional, and that people like him don’t need to participate in it. It is why he committed the crime in the first place.
