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Sun Sep 30, 2018, 09:41 PM

One BIG reason GOP is rushing Kavanaugh, and Orrin Hatch is in it up to his eyeballs:

THey are protecting themselves from whatever corruption charges they may be eligible for, and we know there are many. Russian money, election tampering, collusion, etc. THey want Kav on the court before this case comes up:

https://www.theatlantic.com/politics/archive/2018/09/trump-pardon-orrin-hatch-supreme-court/571285/

A Supreme Court Case Could Liberate Trump to Pardon His Associates

Gamble v. United States isn’t related to the Russia investigation. But the outcome—which one senior Republican senator has tried to influence—could still have consequences for the probe.
Natasha Bertrand
Sep 25, 2018
Mike Segar / AP

A key Republican senator has quietly weighed in on an upcoming Supreme Court case that could have important consequences for Special Counsel Robert Mueller’s Russia investigation.

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 Trump were to shut down the investigation or pardon his associates, “the escape hatch, then, is for cases to be farmed out or picked up by state-level attorneys general, who cannot be shut down by Trump and who generally—but with some existing limits—can charge state crimes even after a federal pardon,” explained Elie Honig, a former assistant U.S. attorney in New Jersey. “If Hatch gets his way, however, a federal pardon would essentially block a subsequent state-level prosecution.”

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Reply One BIG reason GOP is rushing Kavanaugh, and Orrin Hatch is in it up to his eyeballs: (Original post)
Amaryllis Sep 2018 OP
CottonBear Sep 2018 #1
Fred Sanders Sep 2018 #2
Nevilledog Oct 2018 #3
ProfessorPlum Oct 2018 #5
Nevilledog Oct 2018 #6
EffieBlack Oct 2018 #7
Nevilledog Oct 2018 #9
ProfessorPlum Oct 2018 #10
EffieBlack Oct 2018 #11
Nevilledog Oct 2018 #12
ProfessorPlum Oct 2018 #13
ProfessorPlum Oct 2018 #14
Nevilledog Oct 2018 #16
rampartc Oct 2018 #4
EffieBlack Oct 2018 #8
shanti Oct 2018 #15
Nevilledog Oct 2018 #17
shanti Oct 2018 #18
Nevilledog Oct 2018 #21
budkin Oct 2018 #19
ffr Oct 2018 #20

Response to Amaryllis (Original post)

Sun Sep 30, 2018, 09:57 PM

1. Can Trump pardon himself thus avoiding state charges? n/t

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Response to Amaryllis (Original post)

Sun Sep 30, 2018, 09:59 PM

2. Wow, suddenly the cons are pushing for a change to the law they opposed for decades.

Not to mention what happen to precious states rights, food for abortion, bad for crimes??

What changed? Maybe the Russians know?!

ALCU supports Hatch, but not for the same reasons...strange bedfellows in strange times.

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Response to Amaryllis (Original post)

Mon Oct 1, 2018, 03:10 AM

3. I don't understand why people are having a hard time understanding Gamble.

It applies to successive prosecutions for the same crime from the same event.

Nothing about Gamble increases the scope of presidential pardons. Pardons apply to a specific charge, never to be applied as an individual's immunity from state prosecution for a different offense.


All the briefs, Gamble's, the Solicitor General's, and all the amicus briefs.

This is not a legally complicated issue.


http://www.scotusblog.com/case-files/cases/gamble-v-united-states/

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Response to Nevilledog (Reply #3)

Mon Oct 1, 2018, 08:51 AM

5. explain this some more

If Gamble says you can't be prosecuted again at the state level for a crime, and Trump Crony X is prosecuted for a federal crime, and Trump pardons him, then isn't that it? Doesn't that mean that X can't be prosecuted again for the same crime at the state level? Doesn't it mean that there won't be state level charges for criminals who are prosecuted at the federal level, and then pardoned?

how are we misreading it?

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Response to ProfessorPlum (Reply #5)

Mon Oct 1, 2018, 12:13 PM

6. The facts of Gamble are critical.

Gamble was prosecuted as a prohibited possessor in state court. After that conviction the Feds prosecuted him for the same prohibited possession. One event, one gun, one day. Both convictions were based on one set of facts for crimes that have identical elements. Both sentences he received were ordered to run concurrently. However, under federal sentencing guidelines, that sentences was 3 years longer than the state sentence.

The double jeopardy clause is ostensibly to protect someone from receiving separate punishments for the same action, or to be tried again after an acquittal. The prosecution in a single jurisdiction could not decide to retry someone after they were acquitted hoping the next jury would convict. In practical terms, the type of successive prosecutions in Gamble are not very common. If the Feds want to prosecute someone, states are usually more than happy to let someone else pick up the tab for prosecution and incarceration.

Gamble has zero to do with pardons. The state will always have the ability to charge someone for a state crime that is not identical in elements and events. Say someone is convicted for federal money laundering by funneling money through company A. Pardon of that offense would not keep a state from then prosecuting for money laundering pursuant to state law for funneling money through company B.

The only way trump could keep a person from being prosecuted for a state crime would be to issue a pardon saying Person X is preemptively pardoned for every possible federal crime committed at any time, anywhere, so long as the Fed. Crime is identical in elements and proof. Pretty fucking sure that would never happen. Even if he could do that, there are uniquely state based offenses no federal pardon would protect you from......for example, a pardon for evading federal taxes would never keep a state from prosecuting evading state taxes.

The amicus briefs filed in this case are pretty interesting, I urge people to read them all.
http://www.scotusblog.com/case-files/cases/gamble-v-united-states/


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Response to Nevilledog (Reply #6)

Mon Oct 1, 2018, 12:19 PM

7. Thank you.

 

This analysis is very helpful!

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Response to EffieBlack (Reply #7)

Mon Oct 1, 2018, 12:21 PM

9. You're very welcome.

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Response to Nevilledog (Reply #6)

Mon Oct 1, 2018, 12:25 PM

10. thank you for this ..... but

I think you are far too trusting. The President's pardoning power is vast, and I have no doubt that Republicans aim to use this in exactly the way I describe. Trump Jr. is found guilty of some crime relating to the Trump charity. Trump pardons him. NY state now decides to prosecute Trump Jr. for the same crime (he was in NY when he committed the crime). The GOP announces that he can't be tried twice in different jurisdictions for the same crime, therefore, he is free to go.

Nothing you've outlined above makes this any less likely.

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Response to ProfessorPlum (Reply #10)

Mon Oct 1, 2018, 12:36 PM

11. Who exactly in the "GOP announces that he can't be tried twice in different jurisdictions"?

 

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Response to ProfessorPlum (Reply #10)

Mon Oct 1, 2018, 01:25 PM

12. I wasn't clear enough then.

The pardon would only cover the exact same crime, same elements, same proof.

As I stated above, you change one item of proof....i.e. Different victim or different scheme and it's a separate crime. Your post is broad in talking about the type of crime. Identical means identical:
Another example:
Fed. Crime has elements A, B, C, proved by facts D, E, F.
State Crime has elements A, B, C, proved by facts D, E, F.

Those are same elements, same facts. NY law already bars that as double jeopardy (however, if state prosecuted first, Feds. could do successive prosecution)

Change ANY of those letters and you no longer have identical crimes.

So, the Traitor Tot is charged with Fed money laundering for Date X, and receives pardon. State could prosecute for money laundering for Day Z. Different crime.



Please, please, please reads the briefs. They're not that long.

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Response to Nevilledog (Reply #12)

Mon Oct 1, 2018, 02:02 PM

13. then why the need for a supreme court decision

seems like charging twice for the same crime is insanely easy, and prosecutors could easily avoid the issue entirely.

Plus, that doesn't make any god damned sense. If the state can charge you twice for murder, say, by merely changing one piece of the facts and it becomes a different crime, then what good is the double jeopardy protection anyway?

And why was this added to the docket as soon as kennedy announced his retirement?

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Response to Nevilledog (Reply #12)

Mon Oct 1, 2018, 02:28 PM

14. So, I'm reading Hatch's Amicus

he says, well, the states used to be interested in general crime, but the federal government has been encroaching. so, therefore we shouldn't let states and the federal government prosecute someone twice for the same crime.

Does this mean that for general crime, which the Feds have been prosecuting more and more for, would Hatch stop the States from prosecuting, or stop the Federal government from prosecuting? Or does it only matter which one comes first? Or is there some other formula for figuring out who actually gets to prosecute a particular crime?

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Response to ProfessorPlum (Reply #14)

Mon Oct 1, 2018, 05:04 PM

16. There's a lot of cooperation between the jurisdictions.

I had a guy charged with bank robbery, but his buddy only took 3k. Bank robbery is a Fed crime. Feds came to interview the suspects and decided it wasn't worth their time. The State then filed robbery charges.

Successive prosecutions for what I would call garden variety crimes are not common. What I found so interesting about the amicus briefs were the wide variety of reasons supporting the Gamble position. That's really unusual.

The best reason I believe they should get rid of the successive prosecutions is it lets the gov't get two bites of the apple if someone was acquitted at their first trial, whether state or Fed prosecuted first.

As to who chooses to proceed first, it's my experience that states usually defer to the Feds. And again, I believe it's totally for economic reasons.

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Response to Amaryllis (Original post)

Mon Oct 1, 2018, 04:09 AM

4. if trump pardons manafort for say, tax evasion ......

he can still be prosecuted for cheating on his state taxes. the bank fraud might be a little iffy, with kavenaugh deciding which side of iffy it falls on.

i'm a little concerned about the murders that a local jury might acquit but the federal system picks up as "violation of civil rights." there are ;ouisiana parishes that might return to a de facto jim crow without the threat of federal prosecution.

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Response to rampartc (Reply #4)

Mon Oct 1, 2018, 12:20 PM

8. A charge for violation of civil rights has different elements than a murder charge

 

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Response to Amaryllis (Original post)

Mon Oct 1, 2018, 04:12 PM

15. Question:

Even if Kavanaugh was rejected and another person was nominated, is everyone so certain that another person wouldn't do the same thing that Kavanaugh would supposedly do, overturn the Double Jeopardy Clause? Also, is it a given that the rest of the Supremes (the conservative ones) would automatically vote to overturn it too?

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Response to shanti (Reply #15)

Mon Oct 1, 2018, 05:06 PM

17. Gamble is about expanding double jeopardy rights

But remember, it's to apply double jeopardy to two successive prosecutions for the identical charges.

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Response to Nevilledog (Reply #17)

Tue Oct 2, 2018, 12:02 AM

18. That's not what I asked

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Response to shanti (Reply #18)

Tue Oct 2, 2018, 12:59 AM

21. Your question was legally incorrect as to the overturning of the Double Jeopardy Clause.

Nothing about Gamble, in any way, is about "overturning the Double Jeopardy Clause". The Double Jeopardy Clause is for the protection of defendants, not the government. In the history of never has the government ever argued that their prosecution violates the Double Jeopardy Clause. Because expanding the Double Jeopardy Clause would help defendants, it would be rather unique for conservatives to support the notion. In fact, the obviously non-conservative RBG has stated in a previous case that the separate sovereign issue should be revisited (along with Clarence Thomas) http://www.abajournal.com/news/article/october_term_2018

Conservatives would be much more likely to want to deny (and the Solicitor General is arguing that separate sovereign prosecutions are fine by them) Gamble's petition and rule that it's not a violation of the Double Jeopardy Clause to have successive prosecutions. As a criminal defense attorney of 27 years I believe Gamble's position is beneficial to criminal defendants. It is a complete stretch to try and apply the issue presented in Gamble to presidential pardons.

Ultimately, the Conservatives and their tough on crime stance should support keeping things the way they are and preserve the status quo. The attempts to argue that Gamble would grant some additional power or scope to the presidential pardon is misguided. Daniel Richman, a Columbia Law professor, posits that state and federal charges usually have "no overlap, or almost no overlap, that would ring Fifth Amendment chimes in the absence of the dual sovereign analysis", and so the impact of overturning the separate sovereigns doctrine would be minimal. https://www.law.com/newyorklawjournal/2018/07/02/upcoming-scotus-case-could-complicate-ny-effort-to-close-double-jeopardy-loophole/?slreturn=20180902013459

So to answer the portion of your question that appears to be of most importance to you.....I don't think it makes a difference who the new nominee would be because I see nothing to support that Conservatives have taken the position that separate sovereign prosecutions are a bad thing.


(I apologize for the rambling response..... Seriously sleep deprived)

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Response to Amaryllis (Original post)

Tue Oct 2, 2018, 12:09 AM

19. Trump and his cronies are off the hook as soon as Kavanaugh is confirmed

That's why this is happening so fast.

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Response to Amaryllis (Original post)

Tue Oct 2, 2018, 12:10 AM

20. Kompromat.

KGOP
Illiberals.

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