Viper1j
Diamond Member
- Jul 31, 2018
- 4,443
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The Supremes may put the brakes on Trumpy pardons..
https://www.cnn.com/2018/12/06/poli...jeopardy-presidential-pardon-power/index.html
Supreme Court double jeopardy case could impact presidential pardon power
The Supreme Court grappled on Thursday with a case concerning an exception to the Fifth Amendment's ban on prosecuting an individual twice for the same offense in a case that could also possibly impact President Donald Trump's pardon power as it applied to the Robert Mueller probe.
Decades ago, the Supreme Court developed an exception to the Fifth Amendment's double jeopardy clause and it is now being asked to rethink precedent.
The so-called "separate sovereigns exception" provides that a person can be tried twice for the same offense if the prosecutions occur in state and federal courts. The rationale is that the states and the federal government are different sovereigns.
Critics contend that in the modern day it leads to harassment of defendants -- especially the poor -- who can't afford to fight on two fronts. They also point to a recent trend they argue has led to an increase of federal prosecutions in areas that had traditionally been left to the states.
In addition, it could also impact the presidential pardon power, leading to a question of what would happen if the President were to pardon an individual like his former campaign chairman Paul Manafort for federal offenses. Under the exception, a state could conceivably bring a prosecution for the same crimes. That might not occur if the court were to strike the exception.
In court, the justices worried about the fact that the exception has been on the books for some 170 years.
Justice Elena Kagan stressed that "30" justices have approved it over the years.
Justice Brett Kavanaugh suggested that while there may be problems with the doctrine, the court would need to find that precedent was "grievously wrong" before upsetting the stability of the law. "When are we going to upset that stability, when are we going to depart from the humility of respecting precedent to overrule it?"
That seemed to be the prevailing sentiment on the court. Justice Stephen Breyer noted that overturning the exception could upend many corners of the law. "Look at the door we are opening up," he said.
At the same time, some justices recognized the complication of the debate and how the exception has been criticized by academics and judges who fear it could, as Justice Ruth Bader Ginsburg said, amount to a "double whammy" for some defendants.
Justice Neil Gorsuch pointed to what he called the modern problem of the "proliferation of federal crimes" that he said could prompt the government to seek a "successive prosecution if it's unhappy with even the most routine state prosecution."
A Justice Department attorney stressed that if the court were to strike the exception it would cause "practical" problems, deter cooperation, and prompt defendants to play the federal government against states.
Gamble prosecution
The case before the justices Thursday was brought by Terance Gamble, who was convicted of second-degree robbery in Alabama in 2008 and 2013. He was subsequently stopped in 2015 and found with a weapon in his car. Federal and state law forbid a convicted felon from possessing a firearm. After convictions in both federal and state courts, Gamble said that his dual convictions prolonged his incarceration by three years.
An appeals court ruled against him citing Supreme Court precedent which, the court said, "has determined that prosecution in federal and state court for the same conduct does not violate the Double Jeopardy Clause because the state and federal governments are separate sovereigns."
Gamble appealed to the Supreme Court, asking it to overrule the separate sovereigns doctrine.
In court papers, Gamble's lawyers argued that "for centuries" federal and state criminal justice systems operated with little to no overlap and that state criminal law was dominant.
In the modern day, they say, that has changed.
Presidential pardon power limits?
Although the case does not touch on the special counsel's investigation, and the presidential pardon power did not come up in oral arguments, some believe that it might have ramifications for Manafort. The President has not ruled out the possibility of a pardon. If the Supreme Court strikes down the exception, a state could in theory be unable to prosecute him.
"There's more than nothing to the concern that, if the court overturns the separate-sovereigns doctrine, a state could not then prosecute someone like Paul Manafort for the federal crimes for which he might be pardoned," said CNN legal analyst and University of Texas Law School Professor Steve Vladeck.
"But the criminal jurisdiction of states tends to be so much broader than the federal government that such a move might not close the door to all potential criminal liability in such cases," Vladeck added.
Adam Kurland, a professor of law at Howard University School of Law, doubts the case will impact the Mueller investigation. "New York law already has a statute that limits some state prosecutions based on the same conduct as a prior federal prosecution," he said in a statement.
The Justice Department has urged the court to uphold the separate sovereigns exception, citing the intent of the framers.
"The framers wrote the Constitution to manifest the sovereign power of the United States and the states, including the power to enforce their own criminal laws," argued Principal Deputy Solicitor General Jeff Wall in court papers.
Wall also argued that under longstanding policy, the government only pursues a federal prosecution when the state case has left "substantial federal interest demonstrably unvindicated."
https://www.cnn.com/2018/12/06/poli...jeopardy-presidential-pardon-power/index.html
Supreme Court double jeopardy case could impact presidential pardon power
The Supreme Court grappled on Thursday with a case concerning an exception to the Fifth Amendment's ban on prosecuting an individual twice for the same offense in a case that could also possibly impact President Donald Trump's pardon power as it applied to the Robert Mueller probe.
Decades ago, the Supreme Court developed an exception to the Fifth Amendment's double jeopardy clause and it is now being asked to rethink precedent.
The so-called "separate sovereigns exception" provides that a person can be tried twice for the same offense if the prosecutions occur in state and federal courts. The rationale is that the states and the federal government are different sovereigns.
Critics contend that in the modern day it leads to harassment of defendants -- especially the poor -- who can't afford to fight on two fronts. They also point to a recent trend they argue has led to an increase of federal prosecutions in areas that had traditionally been left to the states.
In addition, it could also impact the presidential pardon power, leading to a question of what would happen if the President were to pardon an individual like his former campaign chairman Paul Manafort for federal offenses. Under the exception, a state could conceivably bring a prosecution for the same crimes. That might not occur if the court were to strike the exception.
In court, the justices worried about the fact that the exception has been on the books for some 170 years.
Justice Elena Kagan stressed that "30" justices have approved it over the years.
Justice Brett Kavanaugh suggested that while there may be problems with the doctrine, the court would need to find that precedent was "grievously wrong" before upsetting the stability of the law. "When are we going to upset that stability, when are we going to depart from the humility of respecting precedent to overrule it?"
That seemed to be the prevailing sentiment on the court. Justice Stephen Breyer noted that overturning the exception could upend many corners of the law. "Look at the door we are opening up," he said.
At the same time, some justices recognized the complication of the debate and how the exception has been criticized by academics and judges who fear it could, as Justice Ruth Bader Ginsburg said, amount to a "double whammy" for some defendants.
Justice Neil Gorsuch pointed to what he called the modern problem of the "proliferation of federal crimes" that he said could prompt the government to seek a "successive prosecution if it's unhappy with even the most routine state prosecution."
A Justice Department attorney stressed that if the court were to strike the exception it would cause "practical" problems, deter cooperation, and prompt defendants to play the federal government against states.
Gamble prosecution
The case before the justices Thursday was brought by Terance Gamble, who was convicted of second-degree robbery in Alabama in 2008 and 2013. He was subsequently stopped in 2015 and found with a weapon in his car. Federal and state law forbid a convicted felon from possessing a firearm. After convictions in both federal and state courts, Gamble said that his dual convictions prolonged his incarceration by three years.
An appeals court ruled against him citing Supreme Court precedent which, the court said, "has determined that prosecution in federal and state court for the same conduct does not violate the Double Jeopardy Clause because the state and federal governments are separate sovereigns."
Gamble appealed to the Supreme Court, asking it to overrule the separate sovereigns doctrine.
In court papers, Gamble's lawyers argued that "for centuries" federal and state criminal justice systems operated with little to no overlap and that state criminal law was dominant.
In the modern day, they say, that has changed.
Presidential pardon power limits?
Although the case does not touch on the special counsel's investigation, and the presidential pardon power did not come up in oral arguments, some believe that it might have ramifications for Manafort. The President has not ruled out the possibility of a pardon. If the Supreme Court strikes down the exception, a state could in theory be unable to prosecute him.
"There's more than nothing to the concern that, if the court overturns the separate-sovereigns doctrine, a state could not then prosecute someone like Paul Manafort for the federal crimes for which he might be pardoned," said CNN legal analyst and University of Texas Law School Professor Steve Vladeck.
"But the criminal jurisdiction of states tends to be so much broader than the federal government that such a move might not close the door to all potential criminal liability in such cases," Vladeck added.
Adam Kurland, a professor of law at Howard University School of Law, doubts the case will impact the Mueller investigation. "New York law already has a statute that limits some state prosecutions based on the same conduct as a prior federal prosecution," he said in a statement.
The Justice Department has urged the court to uphold the separate sovereigns exception, citing the intent of the framers.
"The framers wrote the Constitution to manifest the sovereign power of the United States and the states, including the power to enforce their own criminal laws," argued Principal Deputy Solicitor General Jeff Wall in court papers.
Wall also argued that under longstanding policy, the government only pursues a federal prosecution when the state case has left "substantial federal interest demonstrably unvindicated."
SMOGZINN
Lifer
- Jun 17, 2005
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How do you read that as putting the breaks on Presidential pardons? It is going to do the exact opposite. This literally allows a President to pardon people for state crimes as long as he can find a similar enough federal crime to pardon the person for. It is expected that the current SCOTUS is going to rule in favor of double jeopardy attaching, since several of the conservative justices have already signaled as much.
SMOGZINN
Lifer
- Jun 17, 2005
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And that would be the work around. Trump takes a temporary leave of absence under the 25th amendment transferring the power of pardon to Pence, who then pardons Trump, and then Trump takes the powers back. That would be sketchy as hell, but the current SCOTUS would probably find it constitutional, since it is already established that one President can pardon another. It would then fall on Congress to impeach him for it, and I find it questionable that they would.
State charges, if brought, can't be pardoned. I think this has happened to some degree.
Also, someone pardoned may lose their 5th amendment rights in the future iirc, though it might depend on whether the pardon is specific or just a global one, and maybe whether it is preemptive. I'm as far from a lawyer as it gets so I'm probably screwing all that up LOL!
Pardons could constitute obstruction of justice too toward the pardoner from what I've read.
It's unclear whether Trump can pardon himself legally.
----
The short answer is that if Trump starts pardoning himself and everyone else, it's as clear an admission of guilt as you can get--if not legally, then from a "we know he did it" standpoint. We the people have the power to "stop" him, by voting his ass out. And voting out the worms in the Senate that make any of this practically possible. Even if Trump legally comes out clean as a whistle, he's guilty as sin of a number of things that may not even be part of the investigation (money laundering for one, obstruction is right there in Twitter). We need to put our efforts into cleaning up the voting system, supporting the House in their efforts to undo gerrymandering, and generally making tons of noise and getting as many people as possible revved up to get their asses out and vote. If the young people vote--the GOP is FUCKED.
Also, someone pardoned may lose their 5th amendment rights in the future iirc, though it might depend on whether the pardon is specific or just a global one, and maybe whether it is preemptive. I'm as far from a lawyer as it gets so I'm probably screwing all that up LOL!
Pardons could constitute obstruction of justice too toward the pardoner from what I've read.
It's unclear whether Trump can pardon himself legally.
----
The short answer is that if Trump starts pardoning himself and everyone else, it's as clear an admission of guilt as you can get--if not legally, then from a "we know he did it" standpoint. We the people have the power to "stop" him, by voting his ass out. And voting out the worms in the Senate that make any of this practically possible. Even if Trump legally comes out clean as a whistle, he's guilty as sin of a number of things that may not even be part of the investigation (money laundering for one, obstruction is right there in Twitter). We need to put our efforts into cleaning up the voting system, supporting the House in their efforts to undo gerrymandering, and generally making tons of noise and getting as many people as possible revved up to get their asses out and vote. If the young people vote--the GOP is FUCKED.
SMOGZINN
Lifer
- Jun 17, 2005
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That is actually what the Supreme Court is deciding today. If they rule that double jeopardy attaches across federal and state cases then a President can pardon someone for a federal crime and make him immune to state prosecution.
Only concerning that specific crime. But it does not stop them from claiming that answering the question would incriminate them in a different crime that they have no been pardoned for.
It is legally at least for those pardoned. SCOTUS has ruled that accepting a pardon is the same as being found guilty since you can't pardon a innocent man.
soundforbjt
Lifer
- Feb 15, 2002
- 17,788
- 6,041
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Exactly why Trump wanted "I Like Beer" on the bench, he's all in on making the rule that double jeopardy attaches across federal and state cases. Trump is setting himself and family up for "Scott Free".
Viper1j
Diamond Member
- Jul 31, 2018
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Two different sovereigns, it's like two different countries.
Trump can't pardon anyone for crimes committed in France. By the same token as a federal executive, he cannot pardon anyone for state crimes. So, if Manafort gets big tome for his federal conviction, and Trump pardons him, when he's tried in state court, he will be sentenced to state prison, and Trump can't do anything about it.
And there ya go!
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dawp
Lifer
- Jul 2, 2005
- 11,347
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would that apply to tax evasion convictions? if trump pardons for evading federal taxes I would think someone could still be charged with evading state taxes as they are a separate set of laws. And it's pretty obvious that trump has evaded both.
MomentsofSanity
Lifer
- Jan 25, 2011
- 17,072
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I wouldn't think so as those are separate crimes. State taxes are not federal taxes and vice versa. So your crime is a different one against a different entity.
It seems like the doctrine of separate sovereigns will prevail if this source is accurate-
http://www.scotusblog.com/2018/12/a...ready-to-uphold-separate-sovereigns-doctrine/
http://www.scotusblog.com/2018/12/a...ready-to-uphold-separate-sovereigns-doctrine/
SMOGZINN
Lifer
- Jun 17, 2005
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I do not think that double jeopardy would attach in that case, since it represents two different acts. Being pardoned for one criminal act does not pardon you from other criminal acts, even if it is a different incident of breaking the same law. The President can pardon someone from federal tax fraud, but not state, because there is no federal law against not paying state taxes.
I hope so, but this case is showcasing some of the problems with that doctrine and the current SCOTUS might be disposed to reworking it. If they do I imagine that they will carefully word their ruling to be very specific only allowing it to attach between federal and state cases and not foreign states. If they do rule in favor of Gamble the exact wording of the decision will be critically important.
The problem here is the man has done nothing wrong. When Trump is elected again, your poor collective souls will crumble. Liberals need to save now for therapy. Shall we call this a giant nothingburger?
zinfamous
No Lifer
- Jul 12, 2006
- 111,838
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Viper1j
Diamond Member
- Jul 31, 2018
- 4,443
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NewsFlash. Convicted felons can't be president. There is some lag time there, and should he be indicted, tried and convicted during his campaign, that would be an automatic exclusion from getting the office.
BurnItDwn
Lifer
- Oct 10, 1999
- 26,351
- 1,860
- 126
Yes, he has done nothing wrong, except for all of the things... but, we can sweep them under all the rugs and ingore them and play pretend if we like. Hooray for delusional thinking and alternative facts!
theeedude
Lifer
- Feb 5, 2006
- 35,787
- 6,197
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His family and the people he associates with don't think the laws or rules apply to them, so it's not like they are going to stop committing crimes when Trump leaves the White House. So even if he pardons them for everything they have done before he leaves office, if FBI wants to keep a close eye on them, most of them will be in jail in not too long. I think Trump knows FBI has a long memory. Look at Clintons, pardoned Marc Rich, pissed off Comey, and 16 years later he drops the bomb on Hillary.
brandonbull
Diamond Member
- May 3, 2005
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SMOGZINN
Lifer
- Jun 17, 2005
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That is some interesting projection for you. Clinton and Obama are not in office, and never attempted to pardon themselves. This statement was talking about what would happen if a sitting President attempted to pardon themselves, and you felt the immediate need to deflect to someone no longer in office.
Sounds like you actually share our fears that if cornered Trump might attempt to do so. I agree, if given no other options he would, if for no other reason then it would require the SCOTUS to rule on it and give him time to flee to Russia.
Hayabusa Rider
Admin Emeritus & Elite Member
- Jan 26, 2000
- 50,879
- 4,268
- 126
Impeach them then. In the meantime "the enemy of the people", Trump to use his own phrasing for people like those on the cover of Time, has the honor.
In the meantime Trump has directed a criminal act which makes him a criminal, a felon. All that remains is to finish the investigations, indict, charge and try in criminal court, a perfectly Constitutional act. Then there's the Trump Organization that NY is in the process of dealing with along with the "FAKE CHARITY".
Now that we have a Russian agent cooperating that could be fun too.
You might love Trump, but many don't buy into your Il Douche, enough that you can't protect him by diverting onto Obama.
But maybe prison will let you visit him when Trump serves his time for just reasons.
Viper1j
Diamond Member
- Jul 31, 2018
- 4,443
- 4,139
- 136
they have nothing. stop the insanity already. you lost fair and square, move on. NO CAPS WERE USED JUST FOR THE IRRITATION FACTOR.
Muse
Lifer
- Jul 11, 2001
- 40,825
- 10,205
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It's unconscionable, perhaps not unconstitutional. Personally, my conscience takes precedence in "legal" matters. Whoever gave the president pardon powers assumed that the people would elect a responsible person. We've come to the point where that assumption is proved dead wrong.
zinfamous
No Lifer
- Jul 12, 2006
- 111,838
- 31,322
- 146
lol. You do realize that because a federal judge accepted Cohen's testimony and his plea--it literally means that he can not lie. They have the evidence. The prosecutors have the evidence. Cohen's lawyers have all of the evidence. The federal judge(s) involved in this are all significantly smarter than you, and thank god: actually know what they are doing, unlike you. If you can't understand the simple unalienable fact Trump is literally recognized by the Feds as an un-indicted conspiritor, then I don't know what to tell you.
These are the facts on the table. That is what is actually happening in the world that exists on this planet, in this dimension and in this reality. I don't know in what dimension you have chosen to park your brain, but it's not in the same one where Donald Trump is factually a felon president, and where these forums can be read.
And yet you probably still think Hillary is guilty of some unnamed crime, just for reasons. Your brain is fucking useless, worm.
Muse
Lifer
- Jul 11, 2001
- 40,825
- 10,205
- 136
Dude, you don't pull your punches. It really is refreshing! No, I won't "like" your post, I cut myself the other day, I don't like it (ges a scratch).
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