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Sun Sep 3, 2017, 11:52 AM

 

Trump can dodge federal crimes with pardons but not state law

SNIP/
Unfortunately for Trump, the story may not end there. This is because a legal principle called “dual sovereignty” allows a state (or multiple states) to prosecute people for the same crimes as the federal government, if the conduct constitutes a crime and was committed in that state.

This is true even if the person has already been tried by the federal government.

Under the dual sovereignty principle, the Fifth Amendment’s prohibition on double jeopardy — which prevents the government from trying someone twice for the same crime — doesn’t apply if the second trial is by a different “sovereign” — in this case, the state.

How is this possible? The idea of dual sovereignty rests on the premise that the power of the states to prosecute crimes existed before the creation of the federal government, and is reserved to them by the Tenth Amendment to the Constitution. As a result, everyone is a citizen of both the United States and of a state or territory — and therefore owes allegiance to the laws of each. What’s more, the United States and an individual state may be protecting different interests, even if they are prosecuting the same crime.

http://thehill.com/blogs/pundits-blog/the-administration/348989-trump-may-dodge-federal-crimes-with-pardons-but-he-cant#bottom-story-socials



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Reply Trump can dodge federal crimes with pardons but not state law (Original post)
Madam45for2923 Sep 2017 OP
former9thward Sep 2017 #1
RainCaster Sep 2017 #2
bench scientist Sep 2017 #3
shanny Sep 2017 #4

Response to Madam45for2923 (Original post)

Sun Sep 3, 2017, 11:58 AM

1. That theory runs into the real world.

In the real world most states, including New York, have provisions in their state constitutions or state laws which forbid trying a person who has already been tried on that charge by the federal government. So the theory would work in a few states but not most.

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Response to former9thward (Reply #1)

Sun Sep 3, 2017, 12:29 PM

2. I suspect that Mueller knows more about this than we do

I would like to think he has done his homework on this issue. BTW, I'm not an attorney and I don't play one on TV.

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Response to former9thward (Reply #1)

Sun Sep 3, 2017, 12:45 PM

3. Separate charges, state specific ones, can be brought that do not run afoul of federal charges.

The state in question here, NY has exceptions and suggest he could be tried. From the NY Appeals Court case In the Matter of Carmine Polito and Mario Fortunato, v John P. Walsh, ., NY Slip Op 05587 No. 90( 2007)

"As they recognize, under the so-called "dual sovereignty" doctrine, the double jeopardy clause of the United States Constitution does not prohibit successive federal and state prosecutions for the same conduct (Bartkus v Illinois, 359 US 121 [1959]). Nor do petitioners rely on the State Constitution's double jeopardy clause (NY Const art I, § 6). But in New York, protection against double jeopardy is statutory as well as constitutional.

The double jeopardy statute, CPL 40.20, has two subsections. Subsection 1 says simply: "A person may not be twice prosecuted for the same offense." Subsection 2 is less simple. It says, "A person may not be separately prosecuted for two offenses based upon the same act or criminal transaction," but these words are followed by the word "unless" and a list of eight exceptions. One of the exceptions is applicable here. CPL 40.20 (2) (f) excludes from the prohibition of section 40.20 (2) cases where:

"One of the offenses consists of a violation of a statutory provision of another jurisdiction, which offense has been prosecuted in such other jurisdiction and has there been terminated by a court order expressly founded upon insufficiency of evidence to establish some element of such offense which is not an element of the other offense, defined by the laws of this state."

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Response to former9thward (Reply #1)

Sun Sep 3, 2017, 12:58 PM

4. Fine. Indict them in NY first.

 

Avoid the whole federal pardon issue.

Incidentally, this is something Mueller is already indicating he could do: he is involving NY AG in his investigation / pursuit of Manafort (who could be the first domino to fall).

And needless to say, most financial crimes and specifically tRump financial crimes will be vulnerable to investigation and prosecution by the state of New York.

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