I should not have to do this. But here we are.
There's a political rumor/meme/argument going around in the last couple of weeks among people opposed to Judge Kavanaugh's confirmation to the Supreme Court. It's a theory that Trump is rushing Kavanaugh onto the Court so he can rule on an obscure double jeopardy case and open the way for Trump to pardon his underlings in a way that prevents them from being prosecuted by the states. Josh Barro and I knocked it down in this week's edition of All The President's Lawyers. But it persists. NBC has a column pushing it today. It's become so widespread that Snopes has gotten into the act, sort of explaining the structure of it and giving it undeserved cachet.
Here's the problem: the theory is wrong, or at least, wildly exaggerated in certainty and significance.
Here's why.
The issue at hand is the Double Jeopardy Clause of the Fifth Amendment, which says the government can't "for the same offence . . . .be twice put in jeopardy of life or limb." Most commonly double jeopardy means that the government can't charge you again with the same thing after they lose at trial. There's a notorious exception to it called the "Separate Sovereigns" or "Dual Sovereignty" Doctrine. Under this doctrine, different "sovereigns" can try you for the same crime because they have separate interests in punishing the crime. This most commonly allows the federal government and a state to prosecute you for the same crime, on the theory that they have distinct interests and reasons to do so. This famously happened when the federal government prosecuted the police officers who beat Rodney King even after they were acquitted in state court.
The Dual Sovereignty Doctrine has always been controversial and somewhat unpopular. This term, the Supreme Court agreed to hear a case in which it could overturn the Dual Sovereignty Doctrine. That case is Gamble v. United States — you can read all about it here, on the indispensable SCOTUSblog.
The theory/meme/warning goes like this: Trump wants Kavanaugh on the Court immediately, so Kavanaugh can hear Gamble and vote to wipe out the Dual Sovereignty Doctrine, and then, once Trump pardons his various relatives and underlings and lawyers for federal crimes, they will no longer be subject to state prosecution for the same crimes. He'll be able to spare his whole criminal enterprise! It's obstruction/RICO!
No.
There's a bunch of things wrong with this wild-eyed theory.
Let's start with the fact that the Dual Sovereignty Doctrine has never been a clean left/right conservative/liberal issue. This isn't a situation where it's clear there's a 4/4 split and the conservative Judge Kavanaugh is needed to break it. So, for instance, in Heath v. Alabama in 1985, when the question was whether to extend the doctrine to two separate states prosecuting the same crime, seven justices extended it; the two who dissented were Brennan and Marshall, the liberals. In 2016, the issue returned to the Supreme Court in Puerto Rico v. Sanchez Vale. There the issue was whether the Dual Sovereignty Doctrine applied to Puerto Rico — is Puerto Rico, as a territory of the United States, a "separate sovereign" from the United States, or not? The Court held that Puerto Rico was not separate for these purposes and thus Puerto Rico and the United States could not prosecute someone for the same crime. Justices Ginsburg and Thomas — hardly ideological allies – concurred, but questioned whether the Supreme Court should revisit the viability of the Separate Sovereignty Doctrine. "I write only to flag a larger question that bears fresh examination in an appropriate case. The double jeopardy proscription is intended to shield individuals from the harassment of multiple prosecutions for the same misconduct . . . . Current “separate sovereigns” doctrine hardly serves that objective." (Ginsburgh, joined by Thomas, concurring.) The other justices did not question the doctrine. Thus, if the Doctrine is in serious danger of being overturned (and two justices questioning it is not enough to say that it is), it's in danger not just from the right, but from the left. And because it's not a clean left/right issue, we can't assume we know where Kavanaugh would come down on it.
More importantly, though, the connection between the doctrine and Trump pardons is bunk.
Double Jeopardy prevents successive prosecutions for the same crime, not related crimes. So — even if Kavanaugh swung the Supreme Court to overturn the Separate Sovereigns Doctrine, and even if Trump then went on a pardoning rampage to spare Ostrich Jacket and Idiot Lawyer and Junior and Dummy and so forth — Tump's pardon would only prevent state prosecution for the same crime that Trump pardoned them for federally. What's the "same crime?" Under the so-called Blockburger rule, two crimes are not the "same" if each one requires proof of an element that the other does not — that is, if each has at least one unique element. So: Trump's pardon can only prevent state prosecutions to the extent the state crimes have the same elements as the federal crimes he's pardoning. They usually don't. Gamble, the litigant in the case before the Court, points this out himself:
Because this Court deems two crimes to be different offenses any time “each offense contains an element not contained in the
other,” Dixon, at 696 (discussing Blockburger, 284 U.S. at 304), it will still be the unusual case in which the federal and state governments may not both bring some charge based on the same criminal occurrence.
Similarly, the Thurgood Marshall Civil Rights Center filed a friend of the Court brief in support of neither party laying out historical issues for the Court. That Center has a historical interest in civil rights laws, which have often involved Dual Sovereignty Doctrine prosecutions (as it did in the Rodney King case). The center concurs that overturning the doctrine would not prevent dual prosecutions:
Under Blockburger v. United States, federal civil rights statutes concerning law enforcement misconduct are not the “same offense” as State
statutes that may cover the same or similar underlying conduct. Thus, overruling dual sovereignty should not eliminate the federal government’s ability to prosecute these types of civil rights cases after the State has previously prosecuted a case that was tried to verdict.
So: even if Kavanaugh helps overturn the Dual Sovereignty Doctrine, Trump cannot insulate his underlings with pardons — particularly because many of them face uniquely state-law issues, like state tax violations or violations of other state laws. Could Trump pardons preclude state prosecution for some state crimes that are identical to federal crimes? Yes. But the notion that such state prosecutions are even in the works is purely speculative.
There are plenty of reasons you might oppose Judge Kavanaugh. This one is an over-complicated bag of hot air, approaching a Twitter conspiracy theory.
Copyright 2017 by the named Popehat author.
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