Trump’s Associates Could Escape State Charges Because Of An Upcoming Court Case

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A dual-sovereignty doctrine case headed to the Supreme Court could have implications for the Russia investigation.

The U.S. Supreme Court will hear a case during its next session that potentially could effect special counsel Robert Mueller’s Russia investigation — as well as President Donald Trump’s use of presidential pardons.

According to The Atlantic, the case — Gamble v. United States — centers on the dual-sovereignty doctrine, which Republican Senator Orrin Hatch (Utah) has quietly weighed in on changing.

> 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.”

Though the case technically has nothing to do with the Russia investigation or Donald Trump, legal observers have noted that the dual-sovereignty doctrine is essentially a check on 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.

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> 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.

Hatch has insisted that his interest in overturning the doctrine is wholly unrelated to Trump or the Russia investigation, but even so, the timing is significant:

> For months, the Gamble case has been analyzed through the lens of the Mueller investigation, and Brett Kavanaugh, Trump’s nominee to replace the retired Supreme Court Justice Anthony Kennedy, could be on the bench by the time the Court reconvenes this fall. The justices decided to hear the case one day after Kennedy announced his retirement.

What are the details of Gamble v. United States?

> On its face, Gamble is entirely unrelated to the Mueller probe. It arose from the prosecution of Terance Martez Gamble, who was convicted of robbery in Alabama in 2008. His conviction meant that he could not legally own a firearm, but police found a gun in his car after pulling him over for a broken taillight in November 2015. Both state and federal prosecutors charged Gamble with the same offense—being a felon in possession of a firearm—based on the same incident, resulting in an extension of his prison sentence. He has repeatedly appealed, arguing that the dual convictions violate the double-jeopardy clause.

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> The federal government, meanwhile, has argued that overturning the dual-sovereignty doctrine would upend the country’s federalist system. It’s further claimed that the phenomenon of overcriminalization—which Hatch has railed against—makes states’ ability to preserve their own sphere of influence and prevent federal encroachment on law enforcement more important, not less.

Read more here.

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