1. The Constitution removes the impeachment process from the application of the double jeopardy clause. As a matter of the separation of powers, the judicial branch may not intrude into the impeachment process. Thus, the manner in which the Committee and the House conduct an impeachment inquiry is not subject to judicial review.7 Even were that not the case, however, the contention that double jeopardy principles are legally binding in this context is without legal foundation. In order to ascertain the limits, if any, to the impeachment process one must look to the Constitution's impeachment provisions, as well as to the Framers' intention, historical precedents, judicial decisions in analogous contexts and the views of legal commentators. All of these sources support the proposition that a prior criminal acquittal does not act as a bar to impeachment. As Professor Tribe observes, the Framers designed the impeachment judgment clause, (U.S. Const., Article I, sec. 3, clause 7) "to make clear that criminal prosecutions subsequent to removal from office would not constitute double jeopardy of the sort explicitly prohibited by the Fifth Amendment." L. Tribe, at 223. But clause 7 does more than specify a time sequence: "Indictment of 'civil officers' prior to impeachment and removal is not necessarily prohibited... This construction of the impeachment judgment clause also reinforces the proposition that, 7 See Claiborne v. United States Senate, supra.; Ritter v. United States, supra. See also L. Tribe, American Constitutional Law 215 (1978) and 1 J. Story, Commentaries on the Constitution of the United States Section 805, at 507 (1837). since impeachment is ultimately a political process, impeachable offenses must be defined politically, and are not limited to indictable crimes." Id. at n. 33. The criminal process, which applies to public officials as well as other citizens, United States v. Hastings, 681 F.2d 706 (11th Cir. 1982), must be complemented by the further scrutiny of impeachment where misconduct, although not punishable by the criminal law, is sufficiently serious to warrant an official's removal from office for the protection of the nation. As Justice Story pointed out in his Commentaries on the Constitution of the United States, Section 688 at 497 (4th ed. 1873) (1st ed. 1833) the Framers intended that both impeachment and criminal prosecution should be available lest the "extraordinary influence" of "high and potent offenders" enable them to escape punishment in "ordinary tribunals." Alexander Hamilton, in The Federalist No. 65 at 425 (Modern Library ed.) explained that the Senate was chosen to try impeachments because it was likely to be "unawed and uninfluenced." A local jury, for example, responding to purely local concerns, might render a verdict of acquittal; such a "local" decision cannot be permitted to take from Congress the power to remove from office, in the national interest, an official who has committed a high Crime or Misdemeanor. Recent scholarship agrees with the conclusions reached by Hamilton and Justice Story, that impeachment is not subject to the double jeopardy clause. See, e.g. L. Tribe, supra at 223. In 1973, then-Solicitor General (now Circuit Judge) Robert H. Bork concluded in a brief arguing that Vice President Agnew could be indicted before he was impeached: "[A] civil officer could be both impeached and criminally punished even absent the article 1, section 3 proviso." Bork reasoned that the Framers never intended to insulate officers from criminal liability by mere appointment to office. Bork concluded: "Impeachment and the criminal process serve different ends so that the outcome of one has no legal effect upon the outcome of the other."8 (Emphasis added.) Although English impeachments were criminal proceedings, Article I, Section 3, clause 7 establishes the non-criminal nature of the American impeachment process. Impeachments, therefore, are not subject to the double jeopardy clause, which proscribes successive criminal prosecutions for the same offense. As Raoul Berger observed in 1974 in his article The President, Congress and the Courts, 83 Yale L. J. at 1143-44, replying to the argument advanced by former President Nixon's counsel that the impeachment process is criminal in nature: When [President Nixon's counsel] emphasizes the criminal nature of impeachment in England, he overlooks proceeding. The separation of the two in our Constitution demands a construction of impeachment in 8Memorandum for the United States at 8-9, Application of Spiro T. Agnew, Civil No. 73-965 (D.Md.). (Memorandum filed October 5, 1973, concerning the Vice President's claim of constitutional immunity, prepared by Solicitor General Robert H. Bork, quoted in Berger, The President, Congress and the Courts, 83 Yale L. J. 1111, 1124, n. 73 (1974)). First, there is double jeopardy. Were impeachment Thus, the Constitution makes clear that the ability of the Congress to conduct impeachment proceedings is not affected by the outcome of an earlier criminal proceeding.11 Moreover, traditional double jeopardy law would not prohibit impeachment following an acquittal. 2. Under traditional double jeopardy law, a prior acquittal would not bar impeachment, because impeachment is not a criminal proceeding. Under the double jeopardy clause, once jeopardy attaches the defendant may not generally be tried for the "same offense." The Supreme Court, however, has consistently held that the protection against double jeopardy does not prohibit the government from exacting both criminal and civil penalties from an individual for the same acts or omissions. Since impeachment is not a criminal proceeding (see infra), the double jeopardy clause would not bar impeachment following acquittal in a criminal prosecution. 11 The interpretation of Tribe, Bork and Berger that Art. 1, Section 3 removes impeachment proceedings from the operation of the double jeopardy clause "is consistent with the major body of thought on the question. . .", Firmage and Mangrum, Removal of the President: Resignation and the Procedural Law of Impeachment, 1974 Duke L. J. 1023, 1085. Jeopardy does not attach in civil proceedings other than juvenile proceedings. See, e.g., Helvering v. Mitchell, 303 U.S. 391 (1938) (Brandeis, J.) (acquittal in tax evasion trial did not bar subsequent civil assessment suit; court noted difference in the standards of proof required in criminal and civil cases); Office of Disciplinary Counsel v. Campbell, 345 A.2d 616 (Pa. 1975), cert. denied, 424 U.S. 926 (1967) (acquittal did not bar attorney disciplinary action). The nature of the sanction imposed by a proceeding is determinative of whether double jeopardy applies. Thus, an "acquittal on a criminal charge is not a bar to a civil action by the Government, remedial in its nature, arising out of the same facts on which the criminal proceeding was based. " Helvering v. Mitchell, 303 U.S. at 397 (emphasis added). In order to determine whether a prior criminal acquittal bars an impeachment proceeding under the double jeopardy clause, it is necessary therefore to determine whether impeachment is, in Helvering's parlance, "a civil action . . . remedial in its nature." 303 U.S. at 397. There is overwhelming authority that impeachment is properly viewed as remedial or prophylactic rather than criminal or punitive. Justice Story, for example, wrote that impeachment is: a proceeding purely of a political nature. It is not |