Tuesday, September 25, 2018

I hate to have to agree with Orrin Hatch

The Utah lawmaker Orrin Hatch, who sits on the Senate Judiciary Committee, filed a 44-page amicus brief earlier this month in Gamble v. United States, a case that will consider whether the dual-sovereignty doctrine should be put to rest. The 150-year-old exception to the Fifth Amendment’s double-jeopardy clause allows state and federal courts to prosecute the same person for the same criminal offense. According to the brief he filed on September 11, Hatch believes the doctrine should be overturned. “The extensive federalization of criminal law has rendered ineffective the federalist underpinnings of the dual sovereignty doctrine,” his brief reads. “And its persistence impairs full realization of the Double Jeopardy Clause’s liberty protections.”

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 tossed, as Hatch wants, then Trump’s pardon could theoretically protect Manafort from state action.

[...]

“If Hatch gets his way [...] a federal pardon would essentially block a subsequent state-level prosecution.”

  The Atlantic
Frankly, I don't have a problem with that. Well, I may have a problem with a federal pardon, but I don't have a problem with not being tried at the state level for something you already were tried at the federal level.

Also, it's my understanding that this very thing is why Mueller chose to not charge Manafort with all the things he could have. Because New York already has this rule on the books, he left some charges off so that the state could file those charges, and in that case, Trump would still not be able to pardon Manafort.

...but hey, do what you want...you will anyway.

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