When are these colonies gonna rise up? (Photo Getty)
We’ve discussed the double jeopardy “loophole” before. Constitutionally, you can’t be charged twice for the same act, but courts have interpreted “separate sovereignty” for federal courts and state courts. Being charged with a federal crime doesn’t preclude you from being charged with a state crime, even if the crime arises from the same set of facts.
When that interpretation disadvantages black people, nobody cares very much. But now that exception to the double jeopardy rule could negatively impact white people, Trump people specifically.
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Since Trump controls the courts now, expect them to do something about it. On Thursday, the day after Anthony Kennedy announced his retirement, the Supreme Court granted cert in a case challenging the separate sovereignty rule. From the ABA Journal:
The cert petition filed on behalf of Terance Gamble urges the Supreme Court to overrule the so-called “separate sovereigns exception” and “restore the original meaning of the double jeopardy clause.” NBC News and CNN have coverage, while the SCOTUSblog case page is here.
If the Supreme Court overturns the precedent, it could make it more difficult for a state to try someone who is pardoned by the president after federal trial proceedings have begun, according to CNN Supreme Court analyst Stephen Vladeck, a University of Texas law professor.
There are good arguments, for and against this rule. Reasonable people can disagree. But this case is not coming to us because of the academic disagreement proposed by lawyers for Terance Gsamble.
This case is here because Trump will likely try to pardon his associates who have already been indicted in the Russia investigation, or those who are still awaiting charges, or those who will be charged after the ones who are already charged admit to their wrong-doing. But Trump’s pardon power only extends to federal crimes. He can’t touch state crimes.
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Changing this rule, as his hand-picked Supreme Court justices will almost surely help him do, is a way to extend Trump’s pardon power to fully inculcate all of his associates.
And if charges ever do come to Trump directly, well, I think we can expect the new Court to grant cert and rubber stamp Trump’s ability to pardon himself.
A Court that does Donald Trump’s bidding is a loss for the American people.
Supreme Court to weigh double jeopardy issue that could impede state cases after presidential pardon [ABA Journal]
Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.