The question of pardons

The question on everybody's mind from way back is whether Trump will pardon any or all of his criminal cronies.  I read early on that if he did, they would be ineligible to take the Fifth in a trial.  Apparently, and sadly, that's not necessarily so.  It seems that if there's a possibility of their crimes also being state offenses, they can still use the excuse to not incriminate themselves.

These defendants, if pardoned by the president, do not lose their Fifth Amendment privileges, precisely because presidential pardons affect only federal criminal liability but not state prosecution. Based on what we know now, all of these defendants could face state prosecution for many of the same alleged acts. Individuals pardoned by Trump may thus still claim they cannot be forced to say anything to incriminate themselves and that they remain exposed to criminal prosecutions at the state level.

Some legal experts have doubted that states have jurisdiction over crimes committed in a federal presidential campaign, but they miss the bigger and longer-term picture of the Russia investigation, and they overlook the details of how that collusion likely happened.

  Slate

I don't like to hear that and I hope this analysis is not good, or if it is, that Mueller is taking all that into account. And if it is, why is Flynn cooperating with Mueller? Unless he was already aware he wasn't going to get a pardon.

Or, if Mueller allows state trials to go first?  It's all very complex.  I probably don't understand the half of it.

If Trump fires Mueller and his team, state attorneys general and state prosecutors can hire them. If Trump succeeds in pardoning the defendants or himself, state prosecutors can step in without violating the rule against double jeopardy because of the legal concept of “dual sovereignty”: States and the federal government have overlapping but separate sovereignty.

[...]

Some states (including New York) have a special statute that can occasionally prevent a state from bringing its own prosecution after a federal prosecution has advanced to trial. In New York, a state statute prohibits separate prosecutions for “two offenses based on the same act or criminal transaction” in many cases, and the statute appears to apply to separate state and federal prosecutions, even though there are several exceptions.

[...]

In 1978, the U.S. Supreme Court held that jeopardy attaches once a jury is sworn in (or for a bench trial, when the judge swears in the first witness).

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These state statutes raise the possibility that Trump might, intentionally or unintentionally, issue pardons only after federal prosecutions have advanced to a certain stage. It is not hard to imagine his doing so with the defendants in those cases well aware in advance that he plans to pardon them (so they need not plea bargain or cooperate). Such scenarios can be eliminated if Mueller coordinates with Schneiderman, and if New York prosecutors go first.

And he is coordinating with [New York AG Eric] Schneiderman at least in Manafort's case. And that's the case where Trump's money laundering may come in.  Manafort has not made a plea bargain nor is there any indication he's cooperating with Mueller.  And I wouldn't be surprised if Trump has already indicated his intention to pardon him.  Because I still think this is where Trump's real trouble lies: money laundering.  I guess we'll see.

What are the strongest kinds of cases that state prosecutors could bring against Trump’s circle?

1. Tax fraud.

Shades of Elliott Ness and Al Capone. In fact, every time I look at pictures of Robert Mueller, I think of Elliott Ness. Not because he looks so much like Ness, but because he kind of looks like Robert Stack, who portrayed Ness on TV, and I keep thinking he's going to nail Trump on money laundering.  Tax fraud is a good possibility, too.

Ness

d

Stack

Mueller

But I digress.

1. Tax fraud. Considering how many Trump campaign figures may have hidden foreign income, tax fraud cases may be relatively strong and straightforward. The key point here is that if they violate federal tax laws by not reporting income, then they have most likely violated state tax laws as well.

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2. Money laundering. Trump entities have been fined repeatedly for failing to abide rules to prevent money laundering and for their involvement in money laundering.There are serious concerns that the Trump Organization may have used real estate deals with Russian oligarchs to launder their assets, and the Trump Justice Department’s recent low-ball settlement in a case of Russian money laundering raises additional questions. Deutsche Bank, the only Western bank that continued to loan Trump money, is infamous for its own money laundering links to Russia and former Soviet states.

[...]

3. Conspiracy in computer hacking (and stolen property). Did any members or affiliates of the Trump campaign solicit or conspire with Russians to hack the Democratic National Committee’s computers and John Podesta’s emails?

In June 2016 in Trump Tower, Donald Trump Jr., Manafort, and Jared Kushner met with Russians, who allegedly brought opposition research material that may have been acquired through illegal hacking. One of these Russians has already testified before a grand jury.

There’s also a wild card: States criminalize the solicitation, possession, receipt, and aiding in the concealment of stolen property, so there may be a basis for treating the theft of valuable personal information and company documents as a kind of stolen property.

4. Conspiracy to violate privacy. There is already a strong civil lawsuit against the Trump campaign for allegedly conspiring in the violation of privacy rights through the Russian computer hacking and dissemination of emails. There’s also an immediate question of criminal liability.

That one seems kind of far out to me. At least it seems like it's not something anyone would actually file a case on. But I don't know, and at least they could put it on the list of possible charges to urge some of these criminals to make deals.

5. Loan fraud and mortgage fraud. New York criminalizes loan fraud and mortgage fraud. Jared Kushner’s disastrous purchase of 666 Fifth Ave. for $1.6 billion in 2008 and his desperate effort to refinance it has generated many questions. One of them: How did Kushner manage to secure a $1.6 billion deal with only $50 million down?

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6. Quo warranto powers. [...] Delaware and New York can investigate the Trump Organization for emoluments, as the Trump Organization is incorporated in those states. Other states like California have the power to investigate other entities like Trump hotels. [...] This power does not itself involve criminal enforcement, but it does empower the states to investigate any fraud, which may turn into criminal prosecutions.

7. Witness tampering and obstruction of justice.  Perhaps a state prosecution for firing James Comey is a stretch, but there may be other acts—like the destruction of evidence, witness tampering, or lying to investigators—that would be closer to obstruction in New York or in other states.

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[I]f Trump is contemplating pardons to thwart justice, prosecutors in many states will have public opinion on their side, and many would find that the traditions of federalism and the rule of law more compelling than a tradition of deference to federal prosecutors.

Yeah, I don't know. I hope.

In these cases, if there is a question about Trump using federal pardons to impede the investigation, Mueller and Schneiderman (and perhaps other state prosecutors) have good reason to make exceptions here, and have justification for a very unusual step: a state prosecutor bringing the first charges involving the investigation of a U.S. president and his campaign.

So, we could see Manafort going up any time then.

Is all this complicated enough for you? Me, too. I just keep thinking that this is a huge racket that we're just beginning to see the tip of, and all these motherfuckers are going down.  Like Fox Mulder, I want to believe.