There is a Kavanaugh conspiracy theory: The GOP is pushing for him specifically because of a double jeopardy case on SCOTUS docket (Gamble), and he would give Trump the power to pardon his way out of trouble.
I've written often on this issue.
This theory doesn't make sense. 1/
I've written often on this issue.
This theory doesn't make sense. 1/
2/ The Gamble case will not impact whether Manafort, Flynn, and Cohen still face sufficient criminal liability. That's partly thanks to Mueller's strategy of saving some charges for the states, partly due to luck (see link), and...
slate.com/news-and-polit…
slate.com/news-and-polit…
3/ ...and partly due to the staggering number of crimes they've committed in so many different jurisdictions. (Manafort in NY, VA, IL, CA, FL, Cohen with all kinds of NY crimes, Flynn in VA and PA).
slate.com/articles/news_…
slate.com/articles/news_…
4/ I've written that many states already have this double jeopardy protection that Gamble would extend nationally. And if they plead guilty and get pardoned, this protection still doesn't really help Cohen or central figures who committed many crimes. slate.com/news-and-polit…
5/ My concern last spring was that these double jeopardy rules would protect the more MINOR figures in the conspiracy who committed a very small number of crimes, and prosecutors would pressure them "to move up the ladder." If they pleaded guilty, and then were pardoned after...
6/ Those marginal conspirators would be protected from state prosecution and could ignore whatever cooperation agreements they had signed with impunity.
But at this stage, it looks like Mueller doesn't really need those minor figures, because he already nailed the major ones...
But at this stage, it looks like Mueller doesn't really need those minor figures, because he already nailed the major ones...
7/ Sure, on the margins, it would be helpful to know Mueller can make cooperation agreements with other figures, but seriously Trump isn't going to save himself by pardoning minor conspirators or by pardoning Manafort.
It's slamming the barn door after the horse is out...
It's slamming the barn door after the horse is out...
8/ If you're worried about Trump pardoning Don Jr or Kushner, double jeopardy isn't the problem. If all they have is Don Jr and Kushner on lying to Congress or feds, it's hard to make a state charge out of perjury or federal obstruction, regardless of double jeopardy...
9/ But if they have Don Jr. or Kushner on quid pro quo conspiracy, there are probably sufficient state laws in play, like fraud.
And they can be called as witnesses in state trials for other conspirators, and if they perjure themselves, Trump can't pardon them.
And they can be called as witnesses in state trials for other conspirators, and if they perjure themselves, Trump can't pardon them.
10/ As for @OrrinHatch, I think there is an innocent explanation for his amicus brief in Gamble: he has consistently criticized the overfederalization of criminal law, and he has a sincere commitment to federalism over time. (I wish he were more directly addressing the problem.)
11/ Frankly, I am now worried about the left overcorrecting this problem - being too reactive to this particular event where we don't like these Trump defendants, so we oppose their legal claims, but to the detriment of what the right general rule should be for all defendants...
12/ I don't know how Gamble should be decided. I haven't studied the original public meaning of the 5th A. and dual sovereignty closely enough. But it would be a mistake to have a knee-jerk reaction from 2016-2018 plus a baseless conspiracy theory drive a pro-prosecution result.
13/ There is a valid argument that a federal prosecution after a state acquittal or conviction for the same facts (and vice versa) violates the basic principles of double jeopardy.
And instead of undercutting the 5th A, maybe we need a constitutional amendment about pardons...
And instead of undercutting the 5th A, maybe we need a constitutional amendment about pardons...
14/ Or maybe the courts should take the "faithful execution" clauses in the Constitution seriously and recognize they already prohibit the self-dealing and corrupt use of pardon powers and removal powers...
