A sobering warning from Natasha Betrand in The Atlantic that there's a definite reason why Donald Trump wants Brett Kavanaugh confirmed on the Supreme Court as the new term begins October 1: he would almost certainly be the deciding vote in an upcoming SCOTUS 5-4 case decision that could give Trump pardon power over state crimes as well as federal ones.
A key Republican senator has quietly weighed in on an upcoming Supreme Court case that could have important consequences for Special Counsel Robert Mueller’s Russia investigation.
The Utah lawmaker Orrin Hatch, who sits on the Senate Judiciary Committee, filed a 44-page amicus brief earlier this month in Gamble v. United States, a case that will consider whether the dual-sovereignty doctrine should be put to rest. The 150-year-old exception to the Fifth Amendment’s double-jeopardy clause allows state and federal courts to prosecute the same person for the same criminal offense. According to the brief he filed on September 11, Hatch believes the doctrine should be overturned. “The extensive federalization of criminal law has rendered ineffective the federalist underpinnings of the dual sovereignty doctrine,” his brief reads. “And its persistence impairs full realization of the Double Jeopardy Clause’s liberty protections.”
Within the context of the Mueller probe, legal observers have seen the dual-sovereignty doctrine as a check on President Donald Trump’s power: It could discourage him from trying to shut down the Mueller investigation or pardon anyone caught up in the probe, because the pardon wouldn’t be applied to state charges. Under settled law, if Trump were to pardon his former campaign chairman Paul Manafort, for example—he was convicted last month in federal court on eight counts of tax and bank fraud—both New York and Virginia state prosecutors could still charge him for any crimes that violated their respective laws. (Both states have a double-jeopardy law that bars secondary state prosecutions for committing “the same act,” but there are important exceptions, as the Fordham University School of Law professor Jed Shugerman has noted.) If the dual-sovereignty doctrine were tossed, as Hatch wants, then Trump’s pardon could theoretically protect Manafort from state action.
If Trump were to shut down the investigation or pardon his associates, “the escape hatch, then, is for cases to be farmed out or picked up by state-level attorneys general, who cannot be shut down by Trump and who generally—but with some existing limits—can charge state crimes even after a federal pardon,” explained Elie Honig, a former assistant U.S. attorney in New Jersey. “If Hatch gets his way, however, a federal pardon would essentially block a subsequent state-level prosecution.”
A spokesman for the senator denied that his brief was inspired by the Mueller investigation, noting that Hatch has “worked for years to address the problem of overcriminalization in our federal code” and wants the Court “to reconsider the rationale” for the doctrine “in light of the rapid expansion of both the scope and substance of modern federal criminal law.”
But while Hatch has earned his bona fides in the arena of criminal-justice reform, the timing of his filing is nevertheless significant. For months, the Gamble case has been analyzed through the lens of the Mueller investigation, and Brett Kavanaugh, Trump’s nominee to replace the retired Supreme Court Justice Anthony Kennedy, could be on the bench by the time the Court reconvenes this fall. The justices decided to hear the case one day after Kennedy announced his retirement.
In other words, this case was hand-selected to send to the Supreme Court, and Kennedy's retirement the last obstacle Trump needed gone in order to install the SCOTUS vote that would assure his federal pardons would mean that state charges could not be brought on the same crimes.
Trump could then pardon everyone involved, including himself, and then be insulated from state charges. All of it would go away, investigation, charges, or not.
This is what Kavanaugh has to be on the court to do. This was the plan all along. Mueller may lower the boom on Trump, but the means are in place for him to escape completely from any sort of justice, along with all his co-conspirators.
A Republic, if you can keep it...
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