On Monday, the Supreme Court ruled 7-2 (Justices Ginsburg and Gorsuch dissenting) to uphold the “dual sovereignty” doctrine. That means that state law is separate and independent from federal law in relation to “double jeopardy,” that is, being putting on trial twice for the same act. Which means in turn that Trump loyalists charged and convicted under state law can’t be pardoned by Trump.
As many court watches noted, Monday was a bad day for Paul Manafort, because this ruling means Trump will not be able to pardon Manafort on convictions under State law. It was also a bad day for Donald Trump because it means his pardon power is smaller than he thought, and it’s very likely that he could face criminal charges under State law.
There’s a special sprinkling of karma in the fact that it was Justice Alito, a Federalist Society pick, who wrote the opinion that would uphold the dual sovereignty doctrine.
“We have long held that a crime under one sovereign’s laws is not “the same offence” as a crime under the laws of another sovereign. Under this “dual-sovereignty” doctrine, a State may prosecute a defendant under state law even if the Federal Government has prosecuted him for the same conduct under a federal statute.”
He went on to outline why the rule also applies to reversed circumstances, as was the basis for argument in Gamble vs. The United States.
The court rejected Gamble’s argument that the practice is a departure from the Constitution’s original understanding, describing the evidence supporting that argument as “feeble; pointing the other way are the Clause’s text, other historical evidence, and 170 years of precedent.”
Court observers watched this case because it affects the scope of the president’s pardon power. As Greg Stohr put it,
“Elimination of the separate-sovereigns rule would have meant that a presidential pardon might block some state charges as well.”
So while Trump may have the capacity to pardon his loyalists in the event his heavily politicized DOJ prosecutes them, there is nothing he can do to attack the rule of law at the state level.
Applying the same logic, this means that any state who may be listening and who wishes to prosecute Trump on state law should go right ahead and do it. Americans will thank them mightily.
As we know, Trump is Individual 1 in the indictment that led to Michael Cohen’s conviction for which he is currently serving time in jail.
Michael Cohen confirmed it during congressional testimony back in February.
“Last fall I pled guilty in federal court to felonies for the benefit of, at the direction of, and in coordination with Individual Number 1. And for the record, Individual Number 1 is President Donald J. Trump.”
Trump and his propaganda force can try to smear Michael Cohen all they wish; that isn’t going to stop the State of New York from pursuing criminal charges against him for the very crimes that sent a disgraced, disbarred Michael Cohen to prison.
Monday’s Supreme Court ruling increased the possibility that Donald J. Trump will face some of the same charges that put his former “fixer” in jail.
In other words, not only does the ruling shrink Trump’s pardon power from what he hoped it would be, it also increases the possibility that he will face criminal charges under New York law.
It’s possible New York may wish to pursue charges that are separate and apart from Trump’s activities with Mr. Cohen. According to an article published last year, Trump is the subject of several investigations in New York some of which stem from the Mueller investigation. Others include an investigation of his inaugural committee, investigations into Trump’s organizations, including one for potential tax fraud.
The Supreme Court’s ruling closed the door on Manafort’s hope for a pardon, it shrunk Trump’s pardon power and increased the possibility of his prosecution under New York law. The Court did it with support from one of Trump’s chosen Supreme Court justices, Brett Kavanaugh. Even Justice Thomas abandoned his previous opinion on double sovereignty, – an opinion that would have expanded Trump’s pardon power.
Nothing about the ruling bodes well for Donald Trump’s interpretation of his powers as presidency or the extent to which the presidency can shield him from legal accountability. Even justices that are close to Trump on many other issues, distanced themselves from him in this case.