45
the Constitution of the United States § 782; see also 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, 120 (2000)
(hereinafter, “OLC Double Jeopardy Memo”) (noting that
impeachment in Britain could have resulted “in a wide array of
criminal penalties, including fines, imprisonment, and even
execution”). The Framers chose to withhold such broad power
from the Senate, specifying instead that the Senate could
impose “only political, not ordinary criminal, punishments.”
OLC Double Jeopardy Memo at 124; see also Tench Coxe, An
American Citizen, Independent Gazetteer (Philadelphia), Sept.
28, 1787 (The Senate “can only, by conviction on
impeachment, remove and incapacitate a dangerous
officer . . . .” (emphasis in original)). That approach naturally
“raise[d] the question whether the other punishments the
founding generation was accustomed to seeing” in British
impeachment proceedings “could be imposed at all under the
new American government.” OLC Double Jeopardy Memo at
126. The Framers wished to make clear that a President would
“still be liable to prosecution and punishment in the ordinary
course of law.” The Federalist No. 65, at 321 (Alexander
Hamilton) (Coventry House Publishing, 2015); Coxe, An
American Citizen (“[T]he punishment of [a dangerous officer]
as a criminal remains within the province of the courts of law
to be conducted under all the ordinary forms and
precautions . . . .” (emphasis in original)). They therefore
added the provision that “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.
As the Office of Legal Counsel noted, that “second part makes
clear that the restriction on sanctions in the first part was not a
prohibition on further punishments; rather, those punishments
would still be available but simply not to the [Senate].” OLC
Double Jeopardy Memo at 126–27. In short, then, the Framers