# Can/will the Supreme Court immunize Trump against state prosecution? **URL:** \ **Category:** Great Debates\ **Created:** [September 28, 2018, 4:41pm UTC](https://boards.straightdope.com/t/can-will-the-supreme-court-immunize-trump-against-state-prosecution/822120 "2018-09-28T16:41:41Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 7, 2018, 4:55am UTC](https://boards.straightdope.com/t/can-will-the-supreme-court-immunize-trump-against-state-prosecution/822120/21 "2018-10-07T04:55:23Z")
> [@Northern\_Piper](#): > > 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? Blockburger requires that each statute contain a an element that the other does not. If a state statute had A, B, and C elements and the federal statute had A, B, C, and a federal element D, they are not separate crimes. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [October 7, 2018, 5:17am UTC](https://boards.straightdope.com/t/can-will-the-supreme-court-immunize-trump-against-state-prosecution/822120/22 "2018-10-07T05:17:00Z")
> [@Dale\_Sams](#): > > 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. How would that happen? The only two even plausible ways, I can think off is either interpret the “United States” in the provision to mean the US and every State or use the 14th Amendment incorporation doctrine…and frankly neither seem to be a feasible argument to present. ---
**Author:** ![Fiveyearlurker](https://avatars.discourse-cdn.com/v4/letter/f/da6949/32.png) [@Fiveyearlurker](https://boards.straightdope.com/u/Fiveyearlurker)\ **Post date:** [October 7, 2018, 12:26pm UTC](https://boards.straightdope.com/t/can-will-the-supreme-court-immunize-trump-against-state-prosecution/822120/23 "2018-10-07T12:26:31Z")
Thanks for the answers to this. I now realize I’ve spread a conspiracy theory for the first, and hopefully last, time. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [October 7, 2018, 2:16pm UTC](https://boards.straightdope.com/t/can-will-the-supreme-court-immunize-trump-against-state-prosecution/822120/24 "2018-10-07T14:16:11Z")
> [@Bricker](#): > > Blockburger requires that each statute contain a > > an element that the other does not. If a state statute had A, B, and C elements and the federal statute had A, B, C, and a federal element D, they are not separate crimes. Thanks! ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [October 7, 2018, 2:32pm UTC](https://boards.straightdope.com/t/can-will-the-supreme-court-immunize-trump-against-state-prosecution/822120/25 "2018-10-07T14:32:59Z")
Now I have weird Ven diagrams of elements of offences dsncing around in my head … ---
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [October 7, 2018, 2:58pm UTC](https://boards.straightdope.com/t/can-will-the-supreme-court-immunize-trump-against-state-prosecution/822120/26 "2018-10-07T14:58:42Z")
> [@Northern\_Piper](#): > > Now I have weird Ven diagrams of elements of offences dsncing around in my head … just don’t get him started on mopery-dopery doc! ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 7, 2018, 3:02pm UTC](https://boards.straightdope.com/t/can-will-the-supreme-court-immunize-trump-against-state-prosecution/822120/27 "2018-10-07T15:02:01Z")
> [@Bricker](#): > > Blockburger requires that each statute contain a > an element that the other does not. If a state statute had A, B, and C elements and the federal statute had A, B, C, and a federal element D, they are not separate crimes. I agree, but Blockburger has always confused me. In this example are “possession of a pistol” and “possession of a firearm” different element? –I think I know this one, but am not sure. My guess, if Gamble was convicted of possessing a pistol in Alabama, and that very same fact was used to prosecute him federally for possessing a firearm, then that fact of consequence can be pled as a double jeopardy bar. Even if federally they had to prove it had travelled in interstate commerce, because as you said, Blockburger requires both crimes to have different elements. Do you agree with me on this point? To my second point: What if instead of charging Gamble with the possession of the firearm at the time Alabama did, it charged him with receiving a firearm at some time prior after the firearm had been transported in interstate commerce? That, at least to me, is a fact of consequence that was not part and parcel of his Alabama conviction and, IMHO, would not bar a subsequent prosecution. What do you think? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 7, 2018, 3:58pm UTC](https://boards.straightdope.com/t/can-will-the-supreme-court-immunize-trump-against-state-prosecution/822120/28 "2018-10-07T15:58:47Z")
> [@UltraVires](#): > > I agree, but Blockburger has always confused me. In this example are “possession of a pistol” and “possession of a firearm” different element? > > –I think I know this one, but am not sure. My guess, if Gamble was convicted of possessing a pistol in Alabama, and that very same fact was used to prosecute him federally for possessing a firearm, then that fact of consequence can be pled as a double jeopardy bar. Even if federally they had to prove it had travelled in interstate commerce, because as you said, Blockburger requires both crimes to have different elements. Do you agree with me on this point? > > To my second point: What if instead of charging Gamble with the possession of the firearm at the time Alabama did, it charged him with receiving a firearm at some time prior after the firearm had been transported in interstate commerce? That, at least to me, is a fact of consequence that was not part and parcel of his Alabama conviction and, IMHO, would not bar a subsequent prosecution. What do you think? A pistol is a firearm (in case you were wondering 😃 ). So let’s imagine that the only elements of the crime in Alabama are: (1) Possession of (2) a pistol, (3) as a prohibited person. And that the federal crime’s elements are: (1) Possession of (2) a firearm, (3) which has traveled in interstate commerce, (4) as a prohibited person. (I have no idea what the actual elements of each crime are, mind you; just going with this simplified theory.) Those two are the same crime for double jeopardy Blockburger purposes. If they were both federal crimes, the first would be a lesser-included offense of the second. But since all the elements of the first crime are also in the second, they are the same crime as far as double jeopardy is concerned. I’m not sure I understand your second question. Are you asking what if ALABAMA charged Gamble with (1) Receiving (2) a firearm, (3) which has traveled in interstate commerce, (4) as a prohibited person? Then the other Alabama charge would be a lesser-included offense. Conviction (or acquittal) on that first charge would bar a second trial on the second charge. I’d remind you, too, that even when two charges are different under Blockburger, there can arise collateral estoppel concerns under Ashe v Swenson. 🙂 Mutuality of the parties is necessary for collateral estoppel, and so that’s not a problem if one trial is state and one federal, but the same sovereign can’t necessarily prosecute for the same acts after an acquittal even when the crimes are not the same under Blockburger. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 8, 2018, 4:32am UTC](https://boards.straightdope.com/t/can-will-the-supreme-court-immunize-trump-against-state-prosecution/822120/29 "2018-10-08T04:32:02Z")
> [@Bricker](#): > > A pistol is a firearm (in case you were wondering 😃 ). > > So let’s imagine that the only elements of the crime in Alabama are: (1) Possession of (2) a pistol, (3) as a prohibited person. > > And that the federal crime’s elements are: (1) Possession of (2) a firearm, (3) which has traveled in interstate commerce, (4) as a prohibited person. > > (I have no idea what the actual elements of each crime are, mind you; just going with this simplified theory.) > > Those two are the same crime for double jeopardy Blockburger purposes. If they were both federal crimes, the first would be a lesser-included offense of the second. But since all the elements of the first crime are also in the second, they are the same crime as far as double jeopardy is concerned. > > I’m not sure I understand your second question. Are you asking what if ALABAMA charged Gamble with (1) Receiving (2) a firearm, (3) which has traveled in interstate commerce, (4) as a prohibited person? > > Then the other Alabama charge would be a lesser-included offense. Conviction (or acquittal) on that first charge would bar a second trial on the second charge. > > I’d remind you, too, that even when two charges are different under Blockburger, there can arise collateral estoppel concerns under Ashe v Swenson. 🙂 Mutuality of the parties is necessary for collateral estoppel, and so that’s not a problem if one trial is state and one federal, but the same sovereign can’t necessarily prosecute for the same acts after an acquittal even when the crimes are not the same under Blockburger. No, the second question was what if the feds charged him with receiving a firearm in interstate commerce, after Alabama had already convicted him of possession of a pistol/firearm. (I concede your point that a pistol is a firearm, but I seem to recall a strict elements test somewhere in my head that since a firearm is not always a pistol, they are different elements). So, each law has an element that the other does not…possessing v. receiving. The question of whether Gamble possessed a firearm at the time he was caught is a different question than whether he received it at a prior time in or affecting commerce, so collateral estoppel does not apply. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [October 8, 2018, 2:27pm UTC](https://boards.straightdope.com/t/can-will-the-supreme-court-immunize-trump-against-state-prosecution/822120/30 "2018-10-08T14:27:35Z")
But **Bricker** , while all pistols are firearms, not all firearms are pistols. It’s at least conceivable that there might be a weapon where it’s ambiguous whether it counts as a “pistol” or not, and the Alabama court would thus need to prove that it is a pistol as a matter of fact, while the federal court would not have to prove that. Granted that it would probably be fairly easy for the Alabama court to prove that, it’s still something that needs to be proven. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 8, 2018, 9:51pm UTC](https://boards.straightdope.com/t/can-will-the-supreme-court-immunize-trump-against-state-prosecution/822120/31 "2018-10-08T21:51:48Z")
> [@Chronos](#): > > But **Bricker** , while all pistols are firearms, not all firearms are pistols. It’s at least conceivable that there might be a weapon where it’s ambiguous whether it counts as a “pistol” or not, and the Alabama court would thus need to prove that it is a pistol as a matter of fact, while the federal court would not have to prove that. Granted that it would probably be fairly easy for the Alabama court to prove that, it’s still something that needs to be proven. But if Alabama has proven it is a pistol as a matter of fact, it has also proven it is a firearm (I realize that I am contradicting my parenthetical comment above 🙂 ) so a defendant could plead that as collateral estoppel. As far as possessing/receiving, one might ask how can a person possess a firearm without having at some point in the past also received it. The federal law distinguishes the two so another doctrine (again I forget) states that Congress meant two different things for the terms. Possibly one could constructively possess a firearm, say he lives in a house with his wife who actually received the gun, but he did not actually receive it. Also, couldn’t the state prosecute him for the firearm and the feds prosecute him for the ammunition? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 9, 2018, 1:03am UTC](https://boards.straightdope.com/t/can-will-the-supreme-court-immunize-trump-against-state-prosecution/822120/32 "2018-10-09T01:03:55Z")
> [@UltraVires](#): > > No, the second question was what if the feds charged him with receiving a firearm in interstate commerce, after Alabama had already convicted him of possession of a pistol/firearm. (I concede your point that a pistol is a firearm, but I seem to recall a strict elements test somewhere in my head that since a firearm is not always a pistol, they are different elements). > > So, each law has an element that the other does not…possessing v. receiving. > > The question of whether Gamble possessed a firearm at the time he was caught is a different question than whether he received it at a prior time in or affecting commerce, so collateral estoppel does not apply. It’s true: possession is a continuing offense and receiving is not. Yeah, I agree those are different for DJ purposes. ---
**Author:** ![Lord\_Feldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lord_feldon/32/341_2.png) [@Lord\_Feldon](https://boards.straightdope.com/u/Lord_Feldon)\ **Post date:** [June 17, 2019, 2:16pm UTC](https://boards.straightdope.com/t/can-will-the-supreme-court-immunize-trump-against-state-prosecution/822120/33 "2019-06-17T14:16:28Z")
The court, by a 7-2 vote, chose to [retain the separate sovereigns doctrine](https://www.supremecourt.gov/opinions/18pdf/17-646_d18e.pdf) (PDF). ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [June 17, 2019, 2:31pm UTC](https://boards.straightdope.com/t/can-will-the-supreme-court-immunize-trump-against-state-prosecution/822120/34 "2019-06-17T14:31:06Z")
Good news, everyone! ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [June 17, 2019, 2:33pm UTC](https://boards.straightdope.com/t/can-will-the-supreme-court-immunize-trump-against-state-prosecution/822120/35 "2019-06-17T14:33:34Z")
Can anyone translate what this means? ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [June 17, 2019, 2:33pm UTC](https://boards.straightdope.com/t/can-will-the-supreme-court-immunize-trump-against-state-prosecution/822120/36 "2019-06-17T14:33:58Z")
With Ginsberg and Gorsuch dissenting. Not anyone I expected. Regards, Shodan PS - I was hoping this thread would be bumped by **Bricker** and/or **John Mace**. ---
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [June 17, 2019, 2:35pm UTC](https://boards.straightdope.com/t/can-will-the-supreme-court-immunize-trump-against-state-prosecution/822120/37 "2019-06-17T14:35:01Z")
> [@iiandyiiii](#): > > Can anyone translate what this means? AIUI, it means you can be prosecuted for the same thing twice - once by the state govt., once by the Feds - and it doesn’t count as double jeopardy. ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [June 17, 2019, 2:36pm UTC](https://boards.straightdope.com/t/can-will-the-supreme-court-immunize-trump-against-state-prosecution/822120/38 "2019-06-17T14:36:24Z")
> [@Shodan](#): > > With Ginsberg and Gorsuch dissenting. Thus solidifying a new block in the SCOTUS – the G’s. Notably, the K’s (Kavanaugh and Kagan) also stuck together, on the other side. Undoubtedly the Trump WH is now combing through the judicial roles to find another T to pair with Thomas should there be another vacancy. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [June 17, 2019, 2:43pm UTC](https://boards.straightdope.com/t/can-will-the-supreme-court-immunize-trump-against-state-prosecution/822120/39 "2019-06-17T14:43:02Z")
> [@iiandyiiii](#): > > Can anyone translate what this means? It means that you can be prosecuted for the same crime twice by different “sovereigns” notwithstanding the Fifth Amendment’s protection against double jeopardy. So, you can be (for example) prosecuted (and punished) for possessing a firearm while being a convicted felon twice, even if the elements of the crimes are the same. This has been a widely debated issue for many years with differences of opinion that varied widely across the political spectrum (e.g., the two dissents in this case were Gorsuch and Ginsburg). I’m not sure any side is obviously correct – issues of sovereignty versus fairness make both arguments compelling. Edit: I guess I should also note that I’ve never seen any serious argument why this decision would affect Trump one way or another. ---
**Author:** ![Jonathan\_Chance](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jonathan_chance/32/701_2.png) [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)\ **Post date:** [June 17, 2019, 2:53pm UTC](https://boards.straightdope.com/t/can-will-the-supreme-court-immunize-trump-against-state-prosecution/822120/40 "2019-06-17T14:53:17Z")
Yeah, the Trump thing is a sideshow. It’s always been an odd thing, how the states - though by now fully under the control of the federal government - are somehow also sovereign. But, today’s ruling indicates they are and remain so. It’s fine, I suppose, in that at least it reaffirms something. [Previous page](https://boards.straightdope.com/t/can-will-the-supreme-court-immunize-trump-against-state-prosecution/822120.md?page=1)