LAWSPLAINER: No, Kavanaugh's Confirmation Won't Free All Of Trump's Crimimous Minions

[mahatmakanejeeves]

ICYMI: Why That "Oh No, Kavanaugh Is Going To Overturn The Dual Sovereignty Doctrine So Trump Can Pardon Everyone And Stop State Prosecutions" Thing Is Bogus, Bogus, Bogus

Link to tweet

LAWSPLAINER: No, Kavanaugh's Confirmation Won't Free All Of Trump's Crimimous Minions Through An Obscure Double Jeopardy Case

OCTOBER 4, 2018 BY KEN WHITE

I should not have to do this. But here we are.

There's a political rumor/meme/argument going around in the last couple of weeks among people opposed to Judge Kavanaugh's confirmation to the Supreme Court. It's a theory that Trump is rushing Kavanaugh onto the Court so he can rule on an obscure double jeopardy case and open the way for Trump to pardon his underlings in a way that prevents them from being prosecuted by the states. Josh Barro and I knocked it down in this week's edition of All The President's Lawyers. But it persists. NBC has a column pushing it today. It's become so widespread that Snopes has gotten into the act, sort of explaining the structure of it and giving it undeserved cachet.

Here's the problem: the theory is wrong, or at least, wildly exaggerated in certainty and significance. ... Here's why.

The issue at hand is the Double Jeopardy Clause of the Fifth Amendment, which says the government can't "for the same offence . . . .be twice put in jeopardy of life or limb." Most commonly double jeopardy means that the government can't charge you again with the same thing after they lose at trial. There's a notorious exception to it called the "Separate Sovereigns" or "Dual Sovereignty" Doctrine. Under this doctrine, different "sovereigns" can try you for the same crime because they have separate interests in punishing the crime. This most commonly allows the federal government and a state to prosecute you for the same crime, on the theory that they have distinct interests and reasons to do so. This famously happened when the federal government prosecuted the police officers who beat Rodney King even after they were acquitted in state court.

The Dual Sovereignty Doctrine has always been controversial and somewhat unpopular. This term, the Supreme Court agreed to hear a case in which it could overturn the Dual Sovereignty Doctrine. That case is Gamble v. United States — you can read all about it here, on the indispensable SCOTUSblog.
....

[The Velveteen Ocelot]

1. Thank you for posting this!

I never thought Gamble was a particularly good reason for opposing Kavanaugh. There are so many others!

[mahatmakanejeeves]

3. Full disclosure, but you already knew this, if only from the nonsensical content of my posts: IANAL.

I'm going home.

Please enjoy the weekend. Turn off your computer. It will be better that way.

[PoliticAverse]

2. Good to see someone wrote a long article debunking that BS. n/t

[DarthDem]

4. Yup, This is Exactly Correct

As long as the state criminal statute has an element that differes from the federal statute, or vice versa, there is no jeopardy and this decision won't change that.

Tired of hearing this defeatist meme. It's not true.

[pbmus]

5. Our laws are not meant for the rich and powerful...

They are for the poor and powerless, who are the majority...

[mahatmakanejeeves]

6. There are exceptions.

Gideon v. Wainwright

Gideon v. Wainwright, 372 U.S. 335 (1963), is a landmark case in United States Supreme Court history. In it, the Supreme Court unanimously ruled that states are required under the Sixth Amendment to the U.S. Constitution to provide an attorney to defendants in criminal cases who are unable to afford their own attorneys. The case extended the right to counsel, which had been found under the Fifth and Sixth Amendments to impose requirements on the federal government, by imposing those requirements upon the states as well.

[pbmus]

7. There are people sitting in jail for traffic tickets ...

https://www.aclu.org/other/inadequate-representation

https://www.theatlantic.com/politics/archive/2016/04/the-dangerous-domino-effect-of-not-making-bail/477906/

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I could go on and on but I will leave it...

[mahatmakanejeeves]

8. Yes, you are correct. I understand that

the law punishes the rich and poor alike for sleeping under bridges.

[Nevilledog]

9. Please post this in GD

I've gotten tired of trying to explain what Gamble is about and there have been terribly misleading articles written about this case. Thank you for finding and posting this!