This story originally appeared in The Atlantic Sep. 25, 2018 A Supreme Court Case Could Liberate Trump to Pardon His AssociatesGamble v. United States isnât related to the Russia investigation. But the outcomeâwhich one senior Republican senator has tried to influenceâcould still have consequences for the probe. Natasha Bertrand Sep 25, 2018Mike Segar / AP A key Republican senator has quietly weighed in on an upcoming Supreme Court case that could have important consequences for Special Counsel Robert Muellerâs 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 Amendmentâs 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. âThe extensive federalization of criminal law has rendered ineffective the federalist underpinnings of the dual sovereignty doctrine,â his brief reads. âAnd its persistence impairs full realization of the Double Jeopardy Clauseâs liberty protections.â Within the context of the Mueller probe, legal observers have seen the dual-sovereignty doctrine as a check on President Donald Trumpâs power: It could discourage him from trying to shut down the Mueller investigation or pardon anyone caught up in the probe, because the pardon wouldnât be applied to state charges. Under settled law, if Trump were to pardon his former campaign chairman Paul Manafort, for exampleâhe was convicted last month in federal court on eight counts of tax and bank fraudâboth 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 âthe same act,â 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 Trumpâs pardon could theoretically protect Manafort from state action. If Trump were to shut down the investigation or pardon his associates, âthe 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 generallyâbut with some existing limitsâcan charge state crimes even after a federal pardon,â explained Elie Honig, a former assistant U.S. attorney in New Jersey. âIf Hatch gets his way, however, a federal pardon would essentially block a subsequent state-level prosecution.â Paul Manafort and Trumpâs pardon pattern A spokesman for the senator denied that his brief was inspired by the Mueller investigation, noting that Hatch has âworked for years to address the problem of overcriminalization in our federal codeâ and wants the Court âto reconsider the rationaleâ for the doctrine âin light of the rapid expansion of both the scope and substance of modern federal criminal law.â 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, Trumpâs 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. On its face, Gamble is entirely unrelated to the Mueller probe. It arose from the prosecution of Terance Martez Gamble, who was convicted of robbery in Alabama in 2008. His conviction meant that he could not legally own a firearm, but police found a gun in his car after pulling him over for a broken taillight in November 2015. Both state and federal prosecutors charged Gamble with the same offenseâbeing a felon in possession of a firearmâbased on the same incident, resulting in an extension of his prison sentence. He has repeatedly appealed, arguing that the dual convictions violate the double-jeopardy clause. The federal government, meanwhile, has argued that overturning the dual-sovereignty doctrine would upend the countryâs federalist system. Itâs further claimed that the phenomenon of overcriminalizationâwhich Hatch has railed againstâmakes statesâ ability to preserve their own sphere of influence and prevent federal encroachment on law enforcement more important, not less. Paul Rosenzweig, a former senior counsel on the Whitewater investigation who serves as a senior fellow at the conservative R Street Institute, said he thinks the Hatch brief is âwrong substantively.â âIf overfederalization of crime is a problem, we should stop overfederalization,â Rosenzweig said. âHatchâs answer is to end federalism.â But he cautioned that the caseâs implications may not be as significant as they seem. âIt is at least plausible that if the Court gets rid of the [doctrine], it would mean that an acquittal in state court would prevent a second trial in federal court and vice versa,â Rosenzweig told me. But Trumpâs pardon power is âexplicitly limited in the text of the Constitution to pardons for âoffenses against the United States,ââ Rosenzweig said. If that language is interpreted to mean federal criminal offenses specifically, a Trump pardon wouldnât protect against a state criminal prosecution, he said, no matter what happens to the double-jeopardy clause in Gamble. Amid this legal murkiness, âoverallâ one thing is clear, Rosenzweig said: âA result overturning 200 years of dual sovereignty would very much muddy the waters.â Natasha Bertrand is a staff writer at The Atlantic where she covers national security and the intelligence community. |