Millions of Americans are wondering why Senate Republicans are in such a hurry to confirm Brett Kavanaugh to the Supreme Court, despite three allegations of sexual assault during his youth and historically low unpopularity.
The Senate Judiciary Committee vote is scheduled for Friday after Kavanaugh and the first of his three accusers, Dr. Christine Blasey Ford, testify under oath before the Committee.
A pending Supreme Court case is offering a possible glimpse into the reasons Republicans want to “plow through” Kavanaugh’s confirmation.
Next Friday, October 5, the Court will hear a case – Gamble v. United States – which has the potential to overturn 200 years of jurisprudence precedent.
Natasha Bertrand explained in a piece published in The Atlantic on Tuesday that Gamble “will consider whether the dual-sovereignty doctrine should be put to rest.”
Bertrand laid out the basis of Gamble:
“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 offense—being a felon in possession of a firearm—based 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 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,” Bertrand wrote.
Senator Orrin Hatch (R-UT), who sits on the Senate Judiciary Committee overseeing Kavanaugh’s confirmation battle, filed an amicus brief earlier this month arguing that the dual-sovereignty doctrine should be overturned to protect citizens from double jeopardy.
“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.”
“This Court should overrule its prior decisions upholding the due sovereignty doctrine as no longer consistent with the interests of federalism nor the liberty protections of the Double Jeopardy Clause,” Hatch stated in his brief.
The brief also cited the 5th Amendment to the United States Constitution, which protects citizens from being tried for the same crime twice, as a basis for reconsidering dual-sovereignty.
“But while the states’ and federal government’s “independent sovereign authority” makes the dual sovereignty doctrine possible, it does not answer the question whether that independent sovereign authority requires the dual sovereignty doctrine between the federal government and the states, as a matter of constitutional interpretation of the Fifth Amendment.”
A spokesman for Hatch, who is not seeking re-election this fall, said the Senator “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.”
Bertrand notes that some legal experts have cited the dual-sovereignty doctrine as a check on presidential pardon power, which currently only applies to federal crimes. This allows individuals pardoned for federal crimes to be charged for the same offenses at the state level – a core principle of federalism and individual state sovereignty.
Gamble is not directly related to Special Counsel Robert Mueller’s investigation into President Donald Trump’s possible involvement with Russian election interference.
But current doctrine “could discourage him [Trump] 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.”
In August, Trump’s former campaign manager Paul Manafort was convicted on eight felony counts in federal court and reached a plea deal in his second case in Virginia earlier this month.
“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,” Bertrand notes.
Here’s the scary part: “If the dual-sovereignty doctrine were tossed, as Hatch wants, then Trump’s pardon could theoretically protect Manafort from state action.” Granted, Manafort’s plea deal includes provisions that may preclude him from accepting a pardon, though that hardly provides much reassurance.
Elie Honig, a former assistant U.S. attorney in New Jersey, explained that “the escape hatch” in current doctrine “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.” Honig stressed that “if Hatch gets his way, however, a federal pardon would essentially block a subsequent state-level prosecution.”
Even more concerning is Kavanaugh’s past statements on whether or not a sitting president can be investigated or indicted. Kavanaugh aided Ken Starr in his investigation of President Bill Clinton in the 1990’s.
“The nation certainly would have been better off if President Clinton could have focused on Osama bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal investigation offshoots,” Kavanaugh wrote in 2009.
“I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office,” Kavanaugh added. “This is not something I necessarily thought in the 1980s or 1990s. Like many Americans at that time, I believed that the President should be required to shoulder the same obligations that we all carry. But in retrospect, that seems a mistake.”
Putting Kavanaugh on the Supreme Court could potentially expand presidential power to the point of the president being above the law while in office, though it is a constitutionally grey area.
Meanwhile, questions have been arising over whether overturning the dual-sovereignty doctrine could affect the power of the president to pardon himself.
On July 4, Trump boasted that he had the “absolute right” to pardon himself. Though his claim of “numerous legal scholars” backing his opinion is overexaggerated, there is some truth there.
As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!
— Donald J. Trump (@realDonaldTrump) June 4, 2018
On this, the country enters uncharted territory. A president has never tried to pardon himself, nor has the issue ever arisen, even during Watergate.
And then there’s the fact that “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,” Bertrand says. “The justices decided to hear the case one day after Kennedy announced his retirement.”
Paul Rosenzweig, a former senior counsel on the Whitewater investigation who serves as a senior fellow at the conservative R Street Institute, told Bertrand that he disagrees with Hatch’s interpretation, calling it “wrong substantively.”
“If over-federalization of crime is a problem, we should stop over-federalization,” Rosenzweig said. “Hatch’s answer is to end federalism.” And it may not be all gloom and doom just yet.
“It 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,” Rosenzweig told Bertrand, because “explicitly limited in the text of the Constitution to pardons for ‘offenses against the United States.'”
So what does this mean, potentially?
“If that language is interpreted to mean federal criminal offenses specifically,” Bertrand writes, “a Trump pardon wouldn’t protect against a state criminal prosecution, he said, no matter what happens to the double-jeopardy clause in Gamble.”
At the very least, Rosenzweig said, “a result overturning 200 years of dual sovereignty would very much muddy the waters.” Yeah, no kidding.
Still, that doesn’t resolve the question of Trump potentially pardoning himself, which if the time ever comes, there’s little reason to doubt he will at least try (even though he claims to have done nothing wrong).
If Kavanaugh ends up on the Supreme Court, he might just get away with it.