A post from an Elections thread about Kavanaugh pointed out by scr4 and davidm (using the former as the more recent):
I thought this was an interesting question, and it didn’t get a lot of traction on that thread amongst the other talk, so I thought it deserved its own thread.
Can the Supreme Court do what Democrats fear with this case? If so, what’s the feeling on its likelihood of actually happening? If it does, does it make anyone the President wishes to pardon immune from any previous crime forevermore by any American judicial entity? And, if you like, do you actually think this was a motive in the nomination or not?
In Puerto Rico v Sanchez Valle Ginsburg and Thomas indicated that they would like to see the doctrine of duel sovereignty reexamined in a future case. That there were only two seems to indicate it is unlikely to be overturned.
Kavanaugh being nominated had nothing to do with this.
Abrogation of the separate sovereigns doctrine would simply mean that a person could not be tried on both federal and state charges for the same conduct. It would have no effect on the President’s pardon power, which extends to federal law only.
But the point is, if a President in that circumstance pardons someone on the federal level, is there anywhere whatsoever that can try the pardoned on state level charges, if the two sets are similar?
OK, here’s some ugly reality. The Supreme Court can do whatever it wants to do. There are no real checks on its power other than impeachment and even then the decision would be settled precedent. So, it is completely within the realm of possibility that Trump is convicted of a state crime and pardons himself. The state would likely say “Uh-uh, you can’t do that.” They would send people to arrest the President who could then simply refuse to be arrested. He’s in Washington, DC, so they would have to find a way to get a warrant in DC. This would put them in the Federal Court System. It could be appealed up to the Supreme Court and they could say that Trump has a Constitutional Right to pardon himself. Does such a right exist? Nope, but the court has made up rights before and could probably make them up again if it suited them. I’m sure that they could come up with some sort of tangled logic. At that point, the full force of the Federal Government would protect him and for all intents and purposes a President could pardon himself from state crimes.
So it’s probably something that CAN happen. Is it something that is likely to happen? I would hope not. It would probably signal a complete breakdown of all norms and effectively the rule of law. I would hope that at least five justices aren’t completely corrupt and would say such a thing is impossible. I think with some certainty that the White House counsel would tell the President that it’s illegal and can’t be done, but our current President isn’t exactly known to listen to reason.
I would say that the most likely outcome of a state attempting to indict a sitting President is that the Court would say “Nope, not as long as he’s President. When he’s not, he’s a private citizen, so have at it.” This is actually not a bad thing. A president shouldn’t be above the law, but do we really want Alabama issuing indictments against Barack Obama for forging his birth certificate? Because you know, sooner or later that’s what this would turn into. I think that it’s reasonable that a President enjoys a certain amount of protection while in office just so that the country doesn’t fall apart while he’s being denied bail in a California courthouse for an unpaid parking ticket. Realistically, there is a Constitutional way to get rid of a President who is a criminal, it’s called impeachment and if a legislature is incapable of doing that, then it’s a problem with the legislature and by extension the American voter, not the system.
Good question, and it would be a bit more complicated than my first answer suggests.
Without the separate sovereigns doctrine, if the feds have not prosecuted to a point where jeopardy attaches*, a state can still prosecute. If the president issues a pardon before jeopardy has attached in a federal case, then a state can still prosecute. When I answered before, I was thinking of this situation.
If the feds have prosecuted all the way to trial such that jeopardy has attached, and then the president issues a pardon, that presents a new issue. Does the pardon leave jeopardy in place or eradicate it, for purposes of the state’s ability to prosecute? The answer to that may depend on how the SCt structures a ruling doing away with separate sovereigns. My own view is that a state would be able to prosecute, because to rule otherwise is to expand the pardon power beyond constitutional limits. But I can see solid arguments the other way as well, that jeopardy in that situation would remain attached, and the state would be barred.
*This is a defined term in the law of double jeopardy. My recollection is that prosecutors can charge a case a second time if the first case was dismissed for any reason before a jury was empanelled. If the first case went past that point, charging the defendant again amounts to double jeopardy – i.e., jeopardy has attached.
But if, say, Manafort were pardoned for his offenses which include violations of Federal Income tax law, he could still be tried in his home state for violation of the state income tax law since that is really a distinct offense.
Another exception to double jeopardy is a hung jury, so just impaneling a jury cannot be the only thing that implies jeopardy.
Do does this mean that the police officers involved in the Rodney King fiasco who were acquitted of using excessive force could not be prosecuted by the federal government for violating King’s civil rights (which they were)?
I guess I am asking if it is meant to ban being prosecuted for the same crime (e.g. state excessive use of force and federal excessive use of force…pretend that could happen for the sake of argument) or if the same act can be prosecuted for different reasons (e.g. state excessive use of force and federal violating civil rights)?
Been a while since law school, but off the top of my head double jeopardy does not prohibit prosecution for a crime which has an element that is distinct from the elements of the previous crime, and which is missing an element of the previously charged crime.
So let’s say that the federal government charged Donny with mopery, which is the crime of breaking, entering, and peeing on things. He pardons himself.
West Dakota then charges Donny with dopery, which is breaking, entering, and tweeting stupid stuff. If my recollection is correct, the double jeopardy rule does not bar the W.D. prosecution, even though it is based on the same act.
It threatens to create a mess, I think. I think it’s universally understood that the Double Jeopardy protections covers the three common law pleas of: already convicted, already acquired, and pardoned. So I don’t think we would say that a pardon erases the jeopardy. But, of course, the President can only pardon federal crimes, so a more expansive DJ protection threatens to expand that power more broadly. (Some states, as I understand it, afford state DJ protection for pardoned federal crimes, but that’s a state law question). I think I agree with your view, although it does seem to undermine the point of the DJ protection is a state can prosecute for the exact same crime. I’m not sure how often this would come up, though, since I think there’s a pretty small set of federal/state crimes that would “fail” Blockburger. It certainly shouldn’t lead to the complete immunization of people who received federal pardons from state prosecution for “similar” conduct.
I think that is right and we still use the old Blockburger test. “The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.”
As I recall (faintly), in practice, this a messy area of the law and is complicated with respect to individual offenses. (And calls for reform, including with respect to the separate sovereign issue, vastly predate Trump’s election).
The more likely issue to come into play for Trump, I think, is tax fraud. If he gets nailed for Federal tax fraud, then he’ll almost certainly face a similar charge in New York State, and possibly even NY City. One of our resident lawyers can correct me if I’m wrong, but I assume federal and state tax fraud are two completely separate things, even though they are both tax fraud.
It’s absolutely correct that jeopardy attaches when the jury is sworn (or when the judge begins hearing evidence, if it’s a bench trial). But even past that point – and I know you know this, but just making it clear for readers – some results short of an acquittal can potentially permit a retrial, or be barred still by double jeopardy principles.
[ul]
[li]Mistrial on defense motion – no general bar to retrial[/li][li]Mistrial on defense motion based on prosecutorial misconduct - potential double jeopardy bar[/li][li]Mistrial on hung jury – no bar to retrial[/li][li]Judgement of acquittal as a matter of law following jury conviction – no double jeopardy bar to retrial if prosecution appeals and appellate court reverses[/li][li]Appeal of guilty verdict, and appellate reversal – no general bar to retrial[/li][li]Appeal of guilty verdict on grounds of insufficient evidence, and appellate reversal – double jeopardy bars retrial[/li][/ul]
IANAL but IMHO:
The Supreme Court can only decide the issue presented in the case they are hearing. Gamble has nothing to do with pardons or executive privilege. It only will answer the question of whether a person who was convicted or found innocent by a sovereign can later be placed in jeopardy of conviction by another sovereign based on the identical circumstances and actions. It should obviously be decided 8-0, or 9-0. It should have no impact on Trump at all save for dicta that may be inserted to persuade future courts on just what “identical facts and circumstances” might consist of.
There’s a “Lawsplainer” about this on Popehat today. I’m not a lawyer, so I can’t vouch for the accuracy, but he generally does a good job of turning legal-ese into something resembling normal human language.
Ken “Popehat” White is not, to put the matter mildly, any kind of a Trump fan.
And his analysis is spot-on. The Blockburger test is also discussed above in this very thread, Really Not All That Bright describes it without naming it and Tom Tildrum concurs.
I suppose it’s conceivable that Gamble could begin an onslaught, with some future case extending Ashe v Swenson’s collateral estoppel regime into forbidding subsequent state prosecution when the state prosecution seeks to to prove an issue arguably foreclosed by the federal prosecution. But it’s very safe to say that no matter how it comes out, Gamble itself won’t affect presidential pardon power in any meaningful way.
So it seems that Gamble would have little practical effect, and it would seem not even to protect Gamble:
(
Applying Blockburger, the Alabama law forbids only pistols and only those convicted of a crime of violence. The federal law prohibits possession or shipping of any firearm type and only those in or affecting interstate commerce.
My back of the envelope judging says that they are different crimes.
In other words, suppose the dual sovereign doctrine is eliminated. Gamble is convicted under the AL statute for possessing a pistol after having been convicted of a crime of violence.
The Feds indict him under 922 (g) (1). He pleads double jeopardy. The feds say, but wait, we are not charging you with possessing a pistol. We are charging you with receiving a firearm that has previously travelled in interstate commerce. None of those facts were part of Gamble’s conviction in state court.
Wouldn’t there always have to be al least one significant difference in the elements between a federal crime and a state crime? Since Congress doesn’t have a general criminal law power, it has to define the crime with reference to at least one federal element that wouldn’t be in the state crime?
Inter-state commerce, as ultra vires comments; federally protected officer (e.g. The Prez, the Veep); federal employees (as in the OK city bombing); violation of federal civil rights (Rodney King case).
So if there’s always a separate federal element, where’s the double jeopardy?
That not only has not been slated for next months docket…it would not give Trump power to pardon state crimes. And believe me, i’d love for the President to be able to pardon state crimes. Could wipe out draconian drug sentences in a heartbeat.
I think there are instances where the state law might use the same element as an aggravating factor. Like if it’s a more severe crime to kill a law enforcement officer, the state might have written the statute to include federal agents.