of Pine Grove v. Talcott, 86 U.S. (19 Wall.) 666, 674-75 (1873) (“ [t]he case
as to the [Michigan] constitution is a proper one for the application of the maxim,
‘Expressio unius . . .’. The instrument is drawn with ability, care, and fulness
of details” ). In addition, if the Impeachment Judgment Clause is understood as
creating an exception to the general background rule of a prohibition on successive
prosecutions, the expressio unius canon is particularly apt since it has often been
wielded to support the conclusion that when a statute identifies specific exceptions
to a general rule it by implication prohibits other exceptions. See, e.g.,
Leatherman, 507 U.S. at 168; TVA v. Hill, 437 U.S. 153, 188 (1978); City of
Walla Walla v. Walla Walla Water Co., 172 U.S. 1, 22 (1898); Arthur v.
Cumming, 91 U.S. 362, 363 (1875); Sturges v. Collector, 79 U.S. (12 Wall.) 19,
27 (1870).
The expressio unius argument gains plausibility from a comparison of the fed
eral Impeachment Judgment Clause with the equivalent clauses in state constitu
tions. Of the forty-five state constitutions that authorize impeachment and limit
the punishment upon conviction, all forty-five provide for further prosecution in
the courts. In doing so, however, only fifteen follow the federal wording of “ the
party convicted” 7; thirty, by contrast, expressly provide that the party impeached
is liable to criminal proceedings regardless of the outcome of the legislative trial.8
7See Conn Const, art 9, §3; Del Const, art 6, §2; Haw Const art. Ill, § 19; Ky Const §68; Mass Const
ch. I, §2, art 8, Mich. Const, art. 11, §7, para 4, Minn. Const, art. 8, §2, Miss Const. §51, N H. Const art.
39, N.J Const, art. 7, §3, para 3, R1 Const art. XI, §3, Tex. Const, art. 15, §4, Vt. Const. §58; Va. Const,
art IV, § 17; W Va. Const, art IV, §9
8 See Ala. Const, art. 7, § 176, Alaska Const, art. 2, §20, Anz. Const, art. 7, pt 2, §2; Ark Const art 15,
§1; Cal. Const art IV, §18; Colo Const art. XIII, §2, Fla. Const, art. HI, §17; Ga Cun^l art 3, §7, para
3; Idaho Const art V, §3; 111 Const art. IV, § 14, Iowa Const art. Ill, §20, La Const, art. X, §24, Me. Const,
art HI, §7, Mo Const art. Vll, §3; Mont Const art V, § 13, Nev Const art 7, §2, N M. Const, art IV, §36;
N.Y. Const art. VI, §24, N C. Const, art. IV, §4, N.D. Const, art XI, § 10, Okl Const art. VIII, §5; Penn Const,
art VI, §6, SC Const art XV, §3, S D Const, art. XVI, §3; Tenn Const, art. V, §4, Utah Const art VI,
§ 19; Wash Const art. V, §2; W.Va Const, art IV, §9; Wise. Const art VII, § 1, Wyo. Const § 18.
We have found references to the difference between the wording of the federal clause and that of many of the
state constitutions in only two judicial decisions, one of which relies upon the other State ex. rel. Christian v
Rudd, 302 So 2d 821, 825 (Fla Dist. Ct. App 1974), vacated in part on other grounds, Rudd v State ex. rel.
Christian, 310 So.2d 295 (Fla.1975), In re Investigation by Dauphin County Grand Jury, 2 A 2d 804, 808 (Pa
1938) In the Pennsylvania case, a district attorney began a grand jury investigation of several state officials, the
state House of Representatives initiated an impeachment investigation of the same officials, and the House inves
tigating committee then sought a writ of prohibition preventing the grand jury investigation from going forward.
The legislative committee argued, among other things, that the state constitution required impeachment to precede
criminal prosecution The court rejected that argument, stating
The delegation to the House of Representatives of the sole power of impeachment did not have the effect
of depriving the court of its power to continue the investigation in the existing proceeding of crimes consti
tuting misdemeanor in office. This is emphasized by the provision in section 3 of the sixth article, P S.
Const art 6, §3, that “ the person accused [in impeachment proceedings], whether convicted or acquitted,
shall nevertheless be liable to indictment, trial, judgment and punishment according to law.” The two
proceedings are independent of each other and, as the Declaration of Rights shows, were intended to be
kept independent proceedings. The provision that the accused shall be liable to indictment “ whether con
victed or acquitted” does not require halting criminal proceedings until after the impeachment The provi
sion was probably inserted so that there might be no doubt that the result of a trial in either proceeding
should not be a bar to the trial in the other Petitioner refers to the corresponding provision of the federal
constitution and quotes from number LXV of The Federalist, to support the argument that the impeachment
tnal should precede the criminal proceeding. But the federal constitution, U SC .A . Const art 1, §3, cl.
Continued
Whether a Former President May Be Indicted and Tried fo r the Same Offenses for Which He was
Impeached by the House and Acquitted by the Senate
115