kavaNAUGHT's first installment due Dec5: SCotUS might knock down States exemption vs Federal charges

[UTUSN]

**********QUOTE**********

https://lawandcrime.com/supreme-court/upcoming-scotus-case-could-make-manafort-pardon-more-likely/

This Supreme Court Case Might Make Manafort Pardon Very Likely

.... The other problem with a pardon is that it only protects Manafort from federal charges, not state ones. He already signed a detailed admission of offenses as part of his plea agreement, so state prosecutors could theoretically just use that to nail him on state charges.

This state option could be eliminated, depending on the outcome of Gamble v. United States, which is scheduled for oral arguments before the Supreme Court next week. At issue is the “separate sovereigns” exception to the Constitution’s double jeopardy clause that allows states to file charges for violations of state laws, independent of what happened through the federal system. Normally, a person cannot be prosecuted twice for the same thing, but because states are considered “separate sovereigns” from the federal government, it remains a possibility. ....

Laurence Tribe Verified account @tribelaw
Why are people just *assuming* Manafort is pardon-proof vis-a-vis state charges for the conduct he’s charged with in federal court? Gamble v. U.S., to be argued in SCOTUS this Dec. 5, urges the Court to end that weird “separate sovereigns” exception to the double jeopardy ban.
7:23 PM - 27 Nov 2018

If that “weird” exception, as Tribe described it, does get shot down, it would stand to reason that a Manafort pardon could be more likely, since it would actually protect him from punishment.

It remains to be seen how the justices will approach the issue. Democrats might expect right-leaning justices to vote in a way that benefits Trump, but legal issues don’t work that way. Conservative jurists often lean to the side of states’ rights, which here would mean upholding the separate sovereigns exception. We’ll have a better idea once oral arguments take place on December 5.

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[Anon-C]

1. Surprise!

[UTUSN]

3. Just in time, right?!1

[C_U_L8R]

2. States may have distinct charges against Manafort

that don't exactly mirror the Federal charges.
He's toast no matter how you slice it.

[UTUSN]

5. Good to hear, hope you're correct

[Hortensis]

11. That's what I've read. Some of the state jurisdictions

involved already have their own double jeopardy rules, including New York and Virginia from what I read. So the Mueller investigation would have had to plan their strategy around that anyway.

However, of course the bad guys aren't extremely interested in and signing on to this case for nothing. One thing I remember was that finding for Gamble could eliminate leverage to force cooperation for some miscreants who could be pardoned and walk free.

[Squinch]

4. "Conservative jurists often lean to the side of states' rights." But there is nothing conservative

about these republican SC justices. They are radical partisans. They will do whatever is expedient for their political tribe.

[UTUSN]

6. That's what I think, too.

[unblock]

9. "states' rights" is merely an excuse they sometimes use to get away with whatever they can.

they're perfectly happy to have the federal government stomp all over "states' rights" if the federal government is doing something they approve of.

they only like "state's rights" when the federal government is doing something they disapprove of.

[allgood33]

7. This has been what I was trying to point out previously.

I pointed this out in an earlier post and was taken to the wood shed for being a troll. My concerns about the Manafort case were basically about this very thing.

I am trusting that Mueller filed his charges so that there was no overlap with what the states will be charging. At this point, I am hoping that Roberts and Thomas will not vote in favor of denying states sovereignty. If it were about voting or civil rights they should all support the GOP in clinging to states' rights. This is different.

[UTUSN]

8. Well, don't feel lonely: My "threads" (using the word loosely since seldom long enuf to be a thread)

almost always have the very first reply shooting them down, not on grounds of correction of facts or premise but rather on off topic, stylistic snipes. As an iconic DUer said years ago, "Don't let them run you off."

[onenote]

21. Thomas -- and Ginsburg -- are on record as thinking the dual sovereigns exception is dubious

So you probably aren't going to have your hope fulfilled.

As noted elsewhere, at least four justices must have wanted to reconsider the dual sovereigns exception and we know that Thomas and Ginsburg are two of them.

[avebury]

10. Just a weird thought - wouldn't it be interesting if

the State of NY (one of the states with a lot of "skin in the Trump legal problems" game threatened to secede, and in doing to would invoke the Magnisky Act against the Trump family for their corruption and grabbed all their property if the Federal Government interferes with states rights? It would never happen but it is fun to consider just how bad they could make it for Trump et al.

[Azathoth]

12. "separate sovereigns" is much more of a conservative legal principle

That said, conservatives have proved time and again that the only true operating principle they have is "what works for me in this moment in time."

[onenote]

29. Really? Are you familiar with Heath v. Alabama?

Its a 1985 Supreme Court case that extended the separate sovereigns exception to allow two states to try someone for the same crime.

There were two dissenting votes: Marshall and Brennan, the two most liberal Justices on the court at the time.

How do you square that (and Justice Ginsburg's suggestion that the exception be reconsidered) with your generalization about it being a "conservative" legal principle?

[Azathoth]

37. Huh?

You just made my argument for me. Marshall and Brennan dissented from Heath. They resisted expanding the dual sovereignty doctrine. The idea that the US is still a confederation of Wild West fiefdoms, every one of which can take a piece out of someone for the same crime without violating the Constitution, is not really a liberal ideal.

While liberals have occasionally embraced dual sovereignty and Cruikshank when they provided rationales for things they want ( eg. state gun control laws, federal hate crimes laws), that stuff is much more central to anti-Federalist/states' rights philosophies.

[Nevilledog]

13. I'm disappointed in the tweet from Tribe.

He's obviously not read the briefs in Gamble.


Here's the best reasoned article in Gamble:

https://www.popehat.com/2018/10/04/lawsplainer-no-kavanaughs-confirmation-wont-free-all-of-trumps-crimimous-minions-through-an-obscure-double-jeopardy-case/

[diva77]

15. I read that article (thanx for posting) but am still very confused

[Nevilledog]

16. What is it you're finding confusing still?. I'll try and clear it up.

[diva77]

17. in general, the power to pardon confuses me, I guess - not just the upcoming SCOTUS case

[Nevilledog]

18. Gotcha.

Here's an article about the origins of presidential pardons.

https://scholarship.law.wm.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=2444&context=wmlr

[diva77]

25. Excellent! Now my homework is cut out for me. Hopefully after reading the 65 page article, I'll

be less confused!! Thank you!

[onenote]

22. The upcoming case has nothing to do with pardons.

Its a double jeopardy case.

And despite what some of the posts here seem to suggest, the dual sovereigns exception generally hasn't been a right/left issue, but to the extent it has, the progressive point of view has been that the dual sovereigns exception is a bad thing insofar as it lets states go after someone who has been acquitted under federal law of the same essential criminal activity, and vice versa.

[diva77]

27. not directly with pardons, but from some posts and articles, I was under impression that

it would have reverberating effects on pardons -- but thanks to posts #13 & #18 by Nevilledog, I hope to gain a better understanding!!

[Nevilledog]

33. Exactly right.

As a criminal defense attorney for the last 27 years, the notion of expanding double jeopardy protections is welcomed. In practice, however, successful challenges based on double jeopardy are uncommon. Just as uncommon are separate jurisdictions choosing to try individuals for the same crime based on the same facts.

In situations where the State and Feds might have concurrent prosecution interests, the State will usually defer to the Feds. The State is more than happy to let the Feds bear the cost of prosecution and incarceration. For example, had a client arrested for bank robbery, a Fed. Offense. FBI interviewed the defendant post-arrest and decided to not pursue charges because amount involved was less than 5k. State then decided to prosecute for armed robbery. I believe this is the most common practice in the limited amount of cases where the Feds and a State have an element sharing, fact specific crime in common.

The facts in Gamble are perfect for a Supreme Court review. Arguably petty crime first prosecuted by the State and subsequently tried again by the Feds. Maximum sentence guy got was 4 years.


Interesting aside: Gamble is represented on appeal by the law firm of Jones Day. Jones Day, whose lawyers served key positions in the Trump presidential transition and litigated against the nation’s health insurance law and for other major Republican objectives. They had 12 members in the Trump administration.

[MarvinGardens]

14. I don't see how they overturn separate sovereigns.

Even if they were trying to help Trump, there would be a huge unintended consequence, where the states and the federal government could effectively nullify each other's laws, in a haphazard patchwork way. Below are some examples that would screw up conservative policies, and the conservative jurists will certainly think about this.

Suppose the Feds decide to resume enforcement against cannabis growers in states where it is legal under state law to do so. The growers would face many years in Federal prison for attempting to supply the state's pot shops. So suppose then that Colorado passes a law making it a state crime to grow pot, a misdemeanor punishable by a small fine. Anyone who wants protection from the federal charges can "confess" to the local police, pay the fine, and be protected from the federal charges by double jeopardy.

Suppose Roe is overturned, and red states begin outlawing abortion. Suppose a future Democratic Congress, in concert with a Democratic president, in an attempt to subvert the state laws, pass a law outlawing abortion in hospitals receiving federal funding, punishable by a small fine.... You see where this is going.

It would be a total mess.

[onenote]

28. But what about this example

Imagine a state that hasn't decriminalized pot. Defendant gets arrested but a jury acquits him or her. Why? Who knows? Juries do what juries do. So then the feds, unhappy that the defendant got off, bring charges that rely on the exact same facts and force the defendant to defend himself/herself again, and possibly end up in jail.

Is that a good result?

[MarvinGardens]

35. It is not a good result.

But I think the remedy of overturning separate sovereigns would be worse than the problem you have highlighted.

There are two better remedies:
1. Pot should not be illegal, at any level.
2. Drug policy should be a state matter, not federal, unless it involves traffic across state lines. In this case, there would be fewer instances of concurrent jurisdiction.

In other words, the remedies should be legislative, because locking a guy up for weed is bad law.

There are many other examples of separate sovereigns being employed similarly to the example you gave, where most on this board would support its use. Examples are federal hate crimes, and federal civil rights violations, which almost always involve violating a state law as well.

[onenote]

36. The scope of the double jeopardy rule shouldn't depend on the crime or who is accused

Let's imagine a situation where a right wing prosecutor targets a popular Democrat and brings charges against the Democrat for money laundering, or tax fraud, or some other crime that might also fall within the ambit of federal law. And a jury acquits, but a right wing attorney general can't just let it go and brings the same charges under the parallel federal law.

I think many on this board would not support the separate sovereigns exception being applied in that case.

It's possible to dream up examples on both sides of the equation.

[MarvinGardens]

38. I agree, the scope of the rule should not depend on the crime or who is accused.

The original weed example you gave, the accused did violate two laws, if he really is guilty. It is terrible that someone would go to jail for that, but the answer lies with our federal and state legislatures.

I just see a huge impractical mess if separate sovereigns is abolished. And if it is done by "conservatives" to "solve" the temporary problem of Donald Trump, I predict that later decisions will have to bring it back in fits and starts. For one thing, without separate sovereigns, the supremacy clause of the Constitution can be easily circumvented by states.

It would make more sense to abolish separate sovereigns if the US were more like Canada, and the criminal code was a federal thing.

[onenote]

39. Do you really think Justice Ginsburg argued for reconsidering the exception

to solve the temporary problem of Donald Trump?

[MarvinGardens]

40. I do not think that.

Honestly, I haven't read her opinion. But I have no reason to think she wasn't sincere. She neither belongs to the conservative, nor the "conservative", faction of the court I mentioned previously.

I have offered an opinion that differs from hers. I do not possess a fraction of her legal experience, so mine is not a legal opinion. It is my political opinion as a voter.

[allgood33]

19. I have another thought about this:Is it really double jeopardy if a Presidential pardon is involved?

A pardon is not a verdict of "not guilty" by a jury. Thus one is not subject to double jeopardy as in being tried and acquitted. If he has to be found guilty in order to get the pardon then maybe so. But it seems to me that Manafort might be indicted and tried for just lying but not all the other stuff related to Federal crimes. So wouldn't this mean that Trump's pardon would only apply to perjury?

[onenote]

24. Double jeoapardy and pardons are basically unrelated

Double jeopardy protection applies whether one is convicted or acquitted. You can't be tried a second time after being acquitted. And you can't be tried a second time after being convicted. A pardon is irrelevant. What is relevant is the dual sovereigns exception, which allows defendants acquitted by the states to be charged again by the federal government and vice versa. One can come up with examples where this is a good thing and one can come up with examples where its a bad thing.

[onenote]

20. FFS, Justice Ginsburg was a principal mover in getting the separate sovereigns doctrine reviewed

Its not a right/left issue, although to the extent it is, you would expect progressives to want to expand double jeopardy protections. The dual sovereigns exception, for example, cracks the door open to allow a state to pursue criminal charges against someone for a drug law violation after they've been acquitted of the same violation at the federal level, or vice versa.

The Court had four votes to hear the Gamble case even before Kavanaugh was confirmed, and it is all but certain that Ginsburg and Thomas were two. Anyone who thinks Kavanaugh is the deciding vote needs to spell out how they think the other six justices lean on this issue. Do Sotomayor, Kagan, and Breyer line up with or against Ginsburg? Do Alito, Gorsuch, and Roberts line up with or against Thomas?

[pnwmom]

23. I don't understand this or Laurence Tribe's tweet.

Manafort agreed in his plea agreement that he was guilty of several crimes he was never charged with. And they were state crimes. I don't see how Trump can pardon Manafort for state crimes that were never charged as federal crimes --no matter what the outcome of the Gamble case.

[onenote]

26. Actually, Manafort was charged, and tried, for all of the crimes that might also be state crimes

In his plea agreement, he accepts the assertions underlying the seven federal bank fraud and bank fraud conspiracy charges that ended up with a hung jury after being tried in the Eastern District.

There are several questions: are the elements of a federal bank fraud case subsumed within the elements of a state bank fraud case (or to put it another way, is the ultimate fact needed to prove he violated federal bank fraud laws the same as the ultimate fact needed to prove he violated a state bank fraud law). If so, then double jeopardy comes into play.

The second question is whether the dual sovereigns exception to double jeopardy applies to allow a state to prosecute after the feds have done so. Right now, the dual sovereigns exception would prevent the feds from charging Manafort after he was charged by a state. But that might change. And even if that doesn't change, there are states that don't follow the dual sovereigns exception so that an individual charged first by the feds cannot be charged again in that state. For most states, the trigger for the double jeopardy clause is whether a jury has been convened, which clearly is the case as to the seven bank fraud/bank fraud conspiracy charges.

The third, and ultimately most important question is what is the effect of a hung jury. We know double jeopardy applies whether or not the verdict in the first case was guilty or non-guilty. But what if there is no verdict? In order for it to be possible to retry someone after a hung jury it has been necessary for the courts to read the double jeopardy clause as not applying to that situation. But should the same result be reached when its a different jurisdiction is pursuing the case and the first jurisdiction has decided not to retry?

[pnwmom]

30. That's not how I understand it, or this Fordham law professor.

Is it because we're talking about two different sets of charges (from the DC and Eastern district courts)?

https://www.vox.com/2018/9/14/17860648/paul-manafort-plea-deal-cooperating-mueller-trump

Jed Shugerman, law professor, Fordham University

It’s important that Mueller has continued to make sure that a presidential pardon won’t save Manafort. Manafort is pleading guilty to only two charges — conspiracy and witness tampering — but he is conceding to the other facts in the “criminal information,” which establish money laundering and mention the money laundering statute. So Manafort would still face slam-dunk state charges for money laundering, bank fraud, state tax fraud, and other crimes if he were to receive a presidential pardon (which affects only federal crimes).

[onenote]

31. That really doesn't say anything different than what I wrote.

The documents are very public and actually easy to follow.

First, the plea deal itself specifies that Manafort is pleading guilty to all of the charges in a "Superseding Criminal Information" which consists of two counts: Count One, which is conspiracy to engage in money laundering, commit tax fraud, fail to file Foreign Bank Account Reports, violate FARA, and lie to the DOJ. Count Two is conspiracy to obstruct justice by witness tampering.

The plea deal goes on to state that Manafort "admits" to his guilt of the remaining counts against him in the EDVa -- the seven bank fraud and bank fraud conspiracy counts on which the jury couldn't reach a verdict -- as spelled out in the Statement of Offense.

That's it. That's what is covered by the plea deal.

The Superseding Information confirms the scope of the guilty plea -- it lists two counts, identical to the ones described in the plea deal.

And the Statement of Offense further conforms to the plea deal -- it identifies the two Counts to which Manafort pleaded guilty and the seven counts from the EDVA that he is admitting his guilt.

That's it. And that's precisely what I described in my post. The reason a pardon won't save Manafort isn't because of anything special in the plea deal; its because (i) until the separate sovereigns rule is reversed Manafort can't be tried in some states; (ii) the charges that he has plead guilty to (and the underlying facts) aren't the same as charges that might be brought under state law (and to which he has not necessarily admitted his guilt); and (iii) the hung jury decision doesn't trigger double jeopardy protection.

[pnwmom]

32. Thanks for explaining, onenote! This is helpful. n/t

[UniteFightBack]

34. If Manafort is pardoned...doesn't he HAVE to testify then? Bye bye plead the 5th...not sure how

that would help rump.