Meanwhile, Under The Radar….

One of the problems with political discourse grows out of specialization–as the world around us gets more and more complicated, people who are experts in different fields, who use different vocabularies and operate from within different conceptual frameworks have trouble communicating with each other and with the public.

This “silo-ing” can be frustrating, and it’s made worse by the unnecessary use of jargon. But a lot of it is inevitable. I can’t follow the more detailed statistical analyses of my economics colleagues, or the computations that support climate science, or the medical terminology my doctor uses.

Similarly, very few Americans follow legal matters that are more complex than an episode of “Law and Order.” That’s why a case currently pending before the Supreme Court has gotten very little attention, despite its potential consequences. The case is Gamble v. United States.

To its credit, The Atlantic had an article explaining the issue, and those consequences.

Gamble addresses a fairly arcane area of constitutional jurisprudence:  the dual-sovereignty doctrine. That’s a 150-year-old exception to the Fifth Amendment’s prohibition of double-jeopardy. In plain English, the doctrine allows state and federal courts to prosecute the same person for the same criminal offense.

And why, you are asking yourselves, should you give a rat’s patootie about that?

Within the context of the Mueller probe, legal observers have seen the dual-sovereignty doctrine as a check on President Donald Trump’s power: It could discourage him from trying to shut down the Mueller investigation or pardon anyone caught up in the probe, because the pardon wouldn’t be applied to state charges. Under settled law, if Trump were to pardon his former campaign chairman Paul Manafort, for example—he was convicted last month in federal court on eight counts of tax and bank fraud—both New York and Virginia state prosecutors could still charge him for any crimes that violated their respective laws. (Both states have a double-jeopardy law that bars secondary state prosecutions for committing “the same act,” but there are important exceptions, as the Fordham University School of Law professor Jed Shugerman has noted.)

If the dual-sovereignty doctrine were to be tossed, then Trump’s pardon could theoretically protect Manafort from state action.

Senator Orrin Hatch has submitted a brief in the case, arguing that the doctrine should be invalidated, although he claims the Mueller investigation has nothing to do with it. (Pardon me while I snicker….)

Here’s the analysis: If Trump shuts down the Russia investigation, Mueller  could “farm out” cases to state-level attorneys general. Those AGs can’t be shut down by Trump and they can, within some limits, charge people with state crimes, even after those people have received a federal pardon. If the dual-sovereignty doctrine is invalidated, however, a federal pardon would essentially block a subsequent state-level prosecution.

The original issues in the case had nothing to do with the Russia investigation; it began as a relatively arcane argument about how federalism should work. And Paul Rosenzweig, a senior fellow at the conservative R Street Institute thinks it may not have the effect that Orrin Hatch evidently thinks it will.

Trump’s pardon power is “explicitly limited in the text of the Constitution to pardons for ‘offenses against the United States,’” Rosenzweig said. If that language is interpreted to mean federal criminal offenses specifically, a Trump pardon wouldn’t protect against a state criminal prosecution, he said, no matter what happens to the double-jeopardy clause in Gamble.

If that Constitutional language is interpreted that way. But it probably won’t be, if Brett Kavanaugh–or someone like him– is on the Court.

That’s one example of why judicial philosophy–and appointments to the Court– matter a lot more than many people think.

24 thoughts on “Meanwhile, Under The Radar….

  1. Thank you for posting this and explaining it. I’ve seen notes about this specific case many times this pat week so I appreciate the time you spent setting up this post.

  2. “Gamble addresses a fairly arcane area of constitutional jurisprudence: the dual-sovereignty doctrine. That’s a 150-year-old exception to the Fifth Amendment’s prohibition of double-jeopardy. In plain English, the doctrine allows state and federal courts to prosecute the same person for the same criminal offense.”

    With my tunnel vision and basic stubbornness I am going to drag this issue back to this past week and the Kavanaugh SCOTUS appointment – which I believe, come more hell or high water, is going to happen. Trump has limited the FBI investigation to specific witnesses to be
    questioned, related to Dr. Ford’s accusations. It has been reported that the state of Maryland has no statute of limitations on the charges which could be filed against Kavanaugh IF Dr. Ford should choose to do so. With all of this convoluted mess inside Article III of the Constitution and the Judicial branch of government, with Trump setting limits on the FBI which is part of the DOJ he is openly against, and the results either way will effect SCOTUS…can the case be passed on to the state of Maryland authorities totally outside Article III of the Constitution to prosecute Kavanaugh at the state level or can Trump impose his authority with support from the current Congress? I know that is long and involved but…we have watched day by day as Trump does as Trump wants regardless of Rule of Law, the Constitution or basic civil and human rights.

    I will also ask; isn’t this issue “a fairly arcane area of constitutional jurisprudence” still in existence because it is still an effective tool of the law?

    VOTE BLUE!

  3. Same thoughts, JoAnn. With news this morning that the FBI is being restrained in who they can question I am feeling real fear… the go buy a gun fear.

  4. JoAnn and Theresa,

    The FBI investigation isn’t being conducted in order to bring federal charges against Kavanaugh. It is a background check for a job application.

    Sexual assault is not a federal crime. It is a state crime and the state of Maryland did away with the statute of limitations, so regardless of the outcome of the Senate vote, if the investigation finds credible information against Kavanaugh, the state of Maryland could prosecute. Then, if he were found guilty, the Congress would have to impeach him.

    The crimes most at issue in Gamble are white collar crimes, like bank fraud or money laundering. States likely would have to find other fraud statutes in order to pursue cases against Manafort. That’s not the case with Flynn, however, since he was only charged with lying to the FBI. Gamble could determine which charges Mueller will file against future suspects, but he is a very careful prosecutor.

    To avoid further demeaning of the laws of our land, get out and vote. Remember:

    VOTE BLUE!

  5. Peggy, a background check that is limited to a short list of persons already on record isn’t my idea of a background check, particularly when allegations of criminal activity (federal OR state) are in question.

    Crimes most at issue in Gamble will not be limited to those white collar, easily dismissed naughty deeds by banks and businesses. They will also include horrible criminal activity like conspiracy to commit voter fraud, taking bribes from foreign governments, and income tax evasion by elected officials. Any reliance on Congress to hold anyone accountable via impeachment is simply wishful thinking.

  6. Peggy; I believe Theresa and I both understand the context of this investigation and its limitations. The moral character of Kavanaugh should have been part of the original FBI investigations, those 5 or 6 referred to…exactly what did they investigate that missed the issues now part of Trump’s “limited FBI investigation”? Sexual assaults and habitual drunkenness and publicly disparaging an entire group of people is part of one’s basic moral makeup, it is their set character behavior throughout their life. He may claim “boys will be boys” during high school years but was an adult male during college and law school where his disgusting immoral behavior apparently continued. All of that is beside the primary issues of Kavanaugh’s basic performance and avoidance of giving direct answers at his original “hearing” and that totally offensive display during the hearing on Thursday when we saw who he truly is. He is not morally or temperamentally suited to sit in judgement of anyone but Trump highly approves of all fellow “pussy grabbers” and others of low moral character and Congress upholds Trump.

    VOTE BLUE!

  7. The ACLU has this to say about the Gamble Case >>

    The Double Jeopardy Clause of the Fifth Amendment prevents multiple prosecutions for the same underlying conduct. The Framers of the Constitution drew on English common law—which allowed a defendant to raise a prior conviction or acquittal as an absolute bar to retrial on the same crime—and basic notions of fairness.

    And yet, for nearly 100 years, the same Supreme Court has sanctioned a gaping loophole to this principle: the “dual-sovereign” exception. Under this doctrine, state and federal prosecutors may indeed prosecute a person for the same underlying crime, under the specious logic that different “sovereigns” make for different “offenses” under the text of the Double Jeopardy Clause.

    The framers knew that to a defendant accused of a crime, it doesn’t matter who’s doing the prosecuting — only that it should not happen more than once. The Double Jeopardy Clause was derived from a British common law rule that applied to prosecutions by separate sovereigns. And developments over the last 50 years only support closing of the loophole.

    The Double Jeopardy Clause should protect all of us from double jeopardy—no matter who is doing the jeopardizing. https://www.aclu.org/blog/criminal-law-reform/its-time-close-loophole-constitutions-double-jeopardy-rule
    ****************************************************************
    I would agree with the ACLU on this.

    Unfortunately, in today’s world of hyper binary politics a case like Gamble is now politicized. Perhaps the most famous Presidential Pardon was Ford of Nixon.

  8. One things is clear and that is that everything connected with everything Kavanaugh has at its root Trump and the gang who couldn’t shoot straight trying to avoid being prosecuted by Mueller.

    In other words Mueller and our team of lawyers and investigators are trying mightily and earnestly and relentlessly and professionally to assure that our laws are complied with or that the consequences of breaking them are enforced, versus Trump and our other team of lawyers (including Kavanaugh) and investigators trying mightily and earnestly and relentlessly and professionally to insure that there will be no consequences for their crimes.

    See who’s paying the entire bill here? All of this is caused by officials who we and Putin elected, and their gangsters, and most of the Whitehouse staff is complicit in either the crimes or the coverup to avoid accountability for it.

    Mueller has in reality become our only government.

    If anyone had told me in any of my years prior to 2016 that this would accurately describe our Federal government after 2016, I would have argued sincerely and passionately that this turn of events was not possible here.

    Now it’s merely Republican reality entertainment. It’s everything Republicans lied about to discredit the Clintons over 30 years becoming fact for Republicans.

    Why is the Republican base not frothing at the mouth over any much less all of this like they did over Hillary? To them it is merely entertainment. Everything is fake news in their world so it’s dancing with the stars with some god old fashioned soap opera mixed in.

    While this avalanche is roaring down the mountain side towards our village building enough energy to destroy it, there is only one thing that we can do though there’s now no certainty that our village can be saved.

    Pull every D lever we can in November and do everything we can to enable as many other real Americans as possible to do the same.

    And for some, pray.

  9. “One things is clear and that is that everything connected with everything Kavanaugh has at its root Trump…”

    Pete; for whatever reason, if reason still exists within our justice system, Kavanaugh’s moral turpitude would have been uncovered during initial FBI investigations. But…40 years of moral turpitude and illegal business and tax dealings did not keep Trump from being elected – if they were requirements for the President of the United States, he would never have been the nominee. The “gang that couldn’t shoot straight” seems not to be concerned, including the current Gamble case , as it appears we have brought a knife to the gun fight.

    VOTE BLUE!

  10. Elizabeth Warren will ‘take hard look at running for president’ in 2020. “Washington was broken long before Donald Trump ever got there,” Warren said. “But it has gotten a whole lot worse. And then this week, I watched 11 men who were too chicken to ask a woman a single question.”

    “So here’s what I promise: after 6 November, I will take a hard look at running for president.”
    *******************************
    Elizabeth Warren is a true Progressive. Hopefully, the DNC and the Corporate Democrats do not try to torpedo her like they did to Bernie.

    By the way Kavanaugh’s defense of himself reminded me of Lieutenant Commander Queeg in the movie Caine Mutiny, unhinged.

  11. I cannot find Gamble on SCOTUS argument schedule for Oct or Nov. I cannot find a schedule for Dec 3,4,5. The last thing I see is briefs filed 9/11/18. Anyone have any further information?

  12. I was told that it was originally on the docket for the week after Kavanaugh’s rush to judgement profunctory Senate approval. When it became clear that the rush for judgement hit an obstacle it was removed from the schedule so that he can be part of the decision that’s not.

    Can anyone confirm that?

  13. Could a lawyer chime in on this question, because I am looking at more than Trump.

    If the Republican court (that is would it has become) were to succeed –

    Could a state charge and acquit a person of some crime to prevent Federal civil rights prosecution? I am a product of the ’60s and have this vague remembrance that this was used in a positive way in the past.

    If a future Democratic administration restores the voting rights act, could a state charge and acquit their Secretary of State of some minor charge for messing with the voter rolls and avoid the Federal government from interfering?

  14. Monotonous:

    “Elizabeth Warren is a true Progressive. Hopefully, the DNC and the Corporate Democrats do not try to torpedo her like they did to Bernie. ”

    I’m hoping Warren runs. I doubt that the DNC or anyone else could prevent her from winning the nomination. Bernie (love him though I do) was not a Democrat in fact and his overt socialism would have doomed him in the election. Warren is not only bright, but fights like a tiger, and in what I believe will be a coming out party for women across the country, will be an exciting and formidable candidate. She is the perfect foe to defeat that evil orange idiot.

  15. This was an anonymous post on Twitter under a quote from Lindsey Graham wanting an FBI investigation of who leaked the Ford sexual assault case to the public:

    “Gamble vs US, No 17-646 coming up on the Supreme Court. Should the Court overrule the ‘supreme sovereigns’ exception to the double jeopardy clause; would save the senators who benefited from the NRA’s dark $ from state charges (ie GRAHAM, McConnell, Ryan, Rubio…) FOLLOW THE $$”

    Don’t forget, Russia funneled money through the #NRA.

    As the post suggests, and others will quickly investigate, following the money behind the Gamble lawyers will reveal the true motive. You can anticipate it helping a few well connected hands vs helping the general public.

  16. The dual sovereign consideration would not apply to crimes on which Mueller didn’t bring charges. It’s my understanding that he’s consciously declined to file certain federal charges that he could have filed so that New York state can file state charges on the same matters without any fear of double jeopardy accusations.

  17. Remember to look up those offset printed spellings after 1964 from all the words BEFORE. <> is one of those SUITCASE words, as in SUIT UP to SWIM! RADioDetectingAndRanging or Pinging on another Permanent Object is not a Standing Order. You can UP YOUR PERISCOPE to see into the Statehouse THERE, maybe, but you cannot get aBOARD at Norfolk, Virginia Beach without STREET Clothes.
    No Automatic Vendor Machines for any NEWS Wrappers.

  18. Pete

    I don’t dispute that she won, and by a substantial margin. I just said that the process was tilted in her favor. She got my vote and I think she did better than Bernie would have, but, and I still hold to this, the DNC did all they could to make it difficult for Sanders. Wasserman (the DNC chair) ended up resigning–as she should have.

  19. Wray; I agree with you, the DNC process was obviously tilted for her and against Bernie, as was the Democratic party in general with corporation money backing. I think we would have seen a real presidential election between Bernie and Kasich and either winner would have become a better president. Leaving Trump out of the equation, either of them would have become a better president than Hillary whose administration would have been rife with questionable money backing and past resentments of her from both sides of the aisle. She was the most qualified nominee but the one with no qualifications is sitting in the Oval Office. Just my point of view while I am still allowed to have one and voice it publicly.

    VOTE BLUE!

  20. States have their own Constitutions that allow them to resolve cases independently. I dont know if allowing a presidential pardon to take precidence over state law is a good idea. Certainly it is apposite to state rights. Which republicans promote when it suits them

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