Teri Kanefield @Teri_Kanefield Author, lawyer (U.C. Berkeley). My threads are here: terikanefield-blog.com/ My author website is here: www.terikanefield.com/ Sep. 26, 2018 4 min read

(Thread) Twitter Law 101

Some of you are worried there’s a case going to SCOTUS that may “get rid of double jeopardy” and “allow Trump to pardon state crimes.”

Or, as Pat puts it:

It seems the case you're all worrying about is Gamble v. US.

2/ And the article that seems to have you all worried is this one:

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

I'm going to explain why you can stop worrying.

Take out your notebooks. It’s time for Twitter Law 101.

3/ Double Jeopardy is from the 5th Amendment and prohibits a person from being prosecuted twice for the same crime.
 https://www.law.cornell.edu/wex/double_jeopardy 

The idea is this: Once you’re tried, convicted, and punished, that’s the end of it.

That’s fair right?

4/ If you serve time, you don’t want the police to pick you up again for the same crime.

SCOTUS, though, carved out an exception to DJ rule: The same crime can be tried in state court and federal court because the jurisdictions are separate.

5/ The exception is called the dual sovereignty doctrine.

That brings us to Gamble v. US.
 https://www.theusconstitution.org/litigation/gamble-v-united-states/ 

In 2015, Mr. Gamble was pulled over in Alabama for a broken tail light. The cop found a gun in his car. The state of AL prosecuted him for possessing the gun.

6/ He was found guilty & served a year in prison.

After he served his sentence, he was prosecuted in federal court for the same incident.

Now he’s taking his case to SCOTUS, arguing it isn’t fair: He already served his time for that crime. More here:  https://www.theusconstitution.org/litigation/gamble-v-united-states/ 

7/ I agree with him. It isn’t fair. He already served his time.

Now he's asking SCOTUS to abolish the dual sovereignty doctrine.

OK, so what does that have to do with the presidential pardon power?

Not much. The presidential pardon power covers only federal crimes. But . . .

8/. . . it's an issue because people have been saying, “If Trump pardons people, they can still be tried in state court.”

Overturning the duel sovereignty means they can’t be tried in state court for the SAME CRIMES Trump pardons them for in federal court.

9/ But they can be charged in state court for different crimes arising from different facts.

So the case is only an issue with TrumpRussia if this happens:

One of Trump’s pals commits one crime. He is prosecuted in federal court. Trump pardons him.

10/ This isn’t a worry where Trump’s pals are concerned. They have committed boatloads of crimes.

All Mueller has to do is not charge them with all the crimes, and leave out state crimes arising under different facts —

which Mueller has already been doing.

11/ Surely you noticed that Cohen was charged with only a fraction of the crimes he committed. (There was nothing in the plea bargain or indictment about fraud in his taxi business, for example.)

And Manafort committed more crime than we saw charged.
See:  http://www.slate.com/articles/news_and_politics/jurisprudence/2017/11/robert_mueller_s_brilliant_strategy_for_outmaneuvering_trump_pardons.html 

12/ Cohen knows this, which is why he said he doesn’t want a presidential pardon.

The last thing he wants is for his state crimes to be brought out.

Manafort knows that too, which us why he pleaded guilty instead of hoping for a pardon. The state crimes are still on the table.

13/ Here’s another angle to consider: If Trump pardons Manafort after he serves his sentence, well then, he shouldn’t be prosecuted later in state court anyway, right? He already did his time.

But what if Trump pardon’s Manafort BEFORE he serves his sentence?

14/ Under the facts in Gamble v. US, it could be argued that Manafort should still be able to be tried for the same crimes in state court because he escaped punishment, so there’s no unfairness. (But why take chances? Just leave state crimes out of it.)

15/ I am a huge fan of Natasha Bertrand, but I can see how her (excellent) article has given people the wrong impression.
 https://www.theatlantic.com/politics/archive/2018/09/trump-pardon-orrin-hatch-supreme-court/571285/ 
She writes this: “If the dual sovereignty doctrine were tossed, as Hatch wants, then Trump’s pardon could theoretically protect. . .

16/ . . Manafort from state action.”

What she didn’t add was: For the same crime arising from the same facts.

She also wrote: If the duel sovereignty is abolished “a federal pardon would essentially block a subsequent state-level prosecution.”

17/ The word “could” in her headline means Trump could be liberated to pardon people if there are no other state crimes uncharged.

That’s a big “if.”

One more point: The moment Trump tries to pardon himself or his associates, he'll be challenged in court.

18/ Even with Kavanaugh on the SCOTUS, I really doubt Trump can get away with pardoning himself or his associates.

Why? See this thread 👇



There. Feel better?

Stop worrying about pardons.

Worry about the midterms. That’s what matters.

19/ I can see from comments that people still want to worry about this.

Look, if the Dems take back the House, they can appoint an independent prosecutor or a committee and do a real investigation, and that is out of reach of the Courts because it's a separate branch.

20/ The problem is that Congress isn't doing his job (see👇) so we're worried Mueller will be shut down & Trump will pardon everyone.

Ordinarily liberals wouldn't argue for a doctrine that allows a poor guy in AL to be punished twice for the same crime.

21/ I’m adding this article from David Cole, ACLU Legal Director.

In the interests of justice and fairness, the ACLU asks the SCOTUS to close the “dual-sovereignty” loophole.
 https://www.aclu.org/blog/criminal-law-reform/its-time-close-loophole-constitutions-double-jeopardy-rule 
Thanks @MJAntinarelli

22/ I co-authored this @Slate article with @jedshug on why there's no need to worry that the Supreme Court's upcoming double jeopardy case might allow Trump to pardon his way out of trouble, and in fact, supports liberal values 👇

 https://slate.com/news-and-politics/2018/10/double-jeopardy-trump-pardon-gamble.html 


You can follow @Teri_Kanefield.



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