9 votes

Kavanaugh's confirmation won't increase Trump's ability to pardon people because of an obscure double jeopardy case

13 comments

  1. [3]
    CALICO Link
    This was an interesting read, but I'm not sure it was enough to assuage my concerns. How does this work if Trump pulls a Ford?

    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.

    This was an interesting read, but I'm not sure it was enough to assuage my concerns. How does this work if Trump pulls a Ford?

    Now, Therefore, I, Gerald R. Ford, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.

    4 votes
    1. [2]
      Deimos (edited ) Link Parent
      I'm not sure what you mean. Ford's pardon of Nixon would have applied to any federal crimes, but not state-level prosecution (but I believe he was never charged with anything). That's basically...

      I'm not sure what you mean. Ford's pardon of Nixon would have applied to any federal crimes, but not state-level prosecution (but I believe he was never charged with anything). That's basically what the article is about - people are worried that Kavanaugh's confirmation and the Gamble v. United States case have the possibility to change this, and make presidential pardons prevent states from prosecuting as well.

      5 votes
      1. CALICO Link Parent
        The problem is that the current administration already does not play by the rules, and the unchallenged, horrifically unspecific Get Out of Jail Free card that Ford gave set an uncomfortable...

        The problem is that the current administration already does not play by the rules, and the unchallenged, horrifically unspecific Get Out of Jail Free card that Ford gave set an uncomfortable precedent. The Constitution grants the President, "Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." Let's say Trump issues an even more unspecific pardon, one that attempts to clear any persons of any crime in any jurisdiction. Has it been established in either the Constitution or prior rulings that "the United States" refers only to the Federal aspect and not the collection of the states itself?

        My concern with Kavanaugh isn't so much Gamble v. United States, as it is the fact that when shit inevitably hits the fan there's a very good chance of pardons flying left and right. Pardons at least as broad as Ford's for Nixon. Trump has previously said, "I have the absolute right to pardon myself." These are things which would end up before the Supreme Court.

        9 votes
  2. [9]
    Tarsupin Link
    This is exactly the problem, and why everyone is concerned. If Trump can pardon a federal crime, and as a direct result those people don't have to face state prosecution, they are free of all...

    Tump's pardon would only prevent state prosecution for the same crime that Trump pardoned them for federally.

    This is exactly the problem, and why everyone is concerned. If Trump can pardon a federal crime, and as a direct result those people don't have to face state prosecution, they are free of all charges.

    That is LITERALLY the problem. Like, what doesn't this author understand, exactly?

    Right now, if Trump pardons someone, they can still be tried at the state level. That is the ONLY defense we have right now against his pardon power.

    If you take away the state's ability to enforce the law after that point, Trump can absolutely abuse the pardon to free his criminal allies.

    1. [8]
      Deimos (edited ) Link Parent
      Yes, and the entire purpose of the article is explaining why that's not really a significant issue. This author is a well-known, respected lawyer. Are you more qualified than him to comment on this?

      Yes, and the entire purpose of the article is explaining why that's not really a significant issue.

      This author is a well-known, respected lawyer. Are you more qualified than him to comment on this?

      2 votes
      1. [6]
        Tarsupin Link Parent
        And he also just flatly stated the reason it's a problem. Like, he's using the words that I would use to describe the issue. I have two questions. Under the current law, would {Criminal} have to...

        And he also just flatly stated the reason it's a problem. Like, he's using the words that I would use to describe the issue.

        I have two questions.

        1. Under the current law, would {Criminal} have to face state charges, even after Trump's pardon? (Answer: Yes)

        2. After this law, would {Criminal} have to face state charges, even after Trump's pardon? (Answer, according to this lawyer: No)

        Unless I am wrong on either of those two statements, that outlines the exact problem. It would mean that Trump can pardon Manafort/Cohen/His Family/Whomever and they're off the hook for state charges.

        So which part am I wrong about?

        1. [5]
          Deimos Link Parent
          I don't know if I believe you actually read the article. Do you just want me to quote the entire second half that explains it?

          I don't know if I believe you actually read the article. Do you just want me to quote the entire second half that explains 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.

          2 votes
          1. Tarsupin Link Parent
            For further clarification, what he's saying here is: "Well, since not all the laws they broke are federal, Trump couldn't pardon the ones that are at the state level." Yeah, great. Not the point...

            For further clarification, what he's saying here is: "Well, since not all the laws they broke are federal, Trump couldn't pardon the ones that are at the state level."

            Yeah, great. Not the point at all. And not what is remotely of concern. So Trump can't pardon someone for tax violations within the state. But if these criminals are facing charges that are federal, but which could also be taken to state, then that MASSIVELY increases Trump's pardon power.

            1 vote
          2. [3]
            Tarsupin Link Parent
            I don't believe you actually took the time to look at my counter-point, because I boiled it down to two simple yes and no's that could be easily addressed. But, sure, I'll respond. Again, right...

            I don't believe you actually took the time to look at my counter-point, because I boiled it down to two simple yes and no's that could be easily addressed. But, sure, I'll respond.

            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.

            Again, right here in his own language, "many of them." He couldn't even say the same thing about the actual individual laws, just the people themselves. That's cherry-picked and has absolutely no strength to support the original title, nor the implied context of the article. He's saying something entirely different than the point he's trying to argue against.

            Respond to the two yes/no's that I asked.

            1. [2]
              Deimos Link Parent
              The answer to #2 is yes. Because of the whole section I just quoted. I'm not going to reply again. You don't actually understand what you're arguing.

              The answer to #2 is yes. Because of the whole section I just quoted. I'm not going to reply again. You don't actually understand what you're arguing.

              1 vote
              1. Tarsupin Link Parent
                No it's not. You could say that it's "Yes, if that person also committed separate state charges." But saying Yes is flat-out wrong, and it shows you're not understanding the argument. P.S. You...

                No it's not. You could say that it's "Yes, if that person also committed separate state charges."

                But saying Yes is flat-out wrong, and it shows you're not understanding the argument.

                P.S. You can't dodge behind the article when I'm using that article to make my arguments.

      2. Tarsupin Link Parent
        The title of this article is "Kavanaugh's confirmation won't increase Trump's ability to pardon people", and then he describes that his pardon will prevent those affected from having to face trial...

        Yes, and the entire purpose of the article is explaining why that's not really a significant issue.

        The title of this article is "Kavanaugh's confirmation won't increase Trump's ability to pardon people", and then he describes that his pardon will prevent those affected from having to face trial at a state level. That is the exact definition of increasing his pardon power.

        If a criminal has to face state trial regardless of a pardon, that pardon becomes far less meaningful; because now the criminal has accepted guilt (which is part of a pardon).

        So, which part of his contradiction am I supposed to be considering him authoritative on?