Federal Government, Bloomberg, Greg Stohr discussed on Bloomberg Law
You're listening to Bloomberg long. I'm June Grasso. A gun prosecution case before the supreme court last week has nothing to do with the president the Russians or elections, but it could have ramifications for Paul Manafort and anyone else who might be thinking that a presidential pardon will save them from jail time in the special counsel's investigation. The justices considered an exception to the ban on double jeopardy called the separate sovereigns. Doctrine it allows the person to be tried for the same offence in both federal and state prosecutions. A majority of the justices indicated they were wary of overturning the doctrine, here's Johnston's Elena. Kagan part of what story decisive is as a kind of doctrine of humility where we say we are really uncomfortable throwing over one hundred seventy year old rules. The thirty justices have approved just because we think we kind of do it better. Joining us as Bloomberg new supreme court reporter, Greg Stohr. So Greg tell us about the separate sovereign. Doctrine and the argument of Terence gamble June. The constitution protects people against double jeopardy. You can't be prosecuted twice for the same offence. But the court has made an exception to that doctrine win the prosecution's are by the federal and the state government starting about one hundred and seventy years ago. The court started saying, well, they're actually separate sovereigns, and they both have an interest in protecting their laws. So at least win win. It's not the exact same offense at least from their some some small variation the federal government and the state government can prosecute and individual for the same offense without running afoul of the double jeopardy clause in the supreme court in this case involving a man named Karen Campbell was being asked to overturn that doctrine. They would have to overturn that long. Standing precedent? Did the justices by their questions seemed to indicate that they were willing to they suggested they were not willing to which. A little bit of a surprise given that they agreed to take this case up in the first place and that requires four justices to say, I think there's an important issue here. I'd like to decide, but it was hard to count even up to four in the courtroom. Certainly it was hard to count the five in terms of the justices who might be willing to overturn the separate sovereign doctrine. I can give defendants more power to claim that they're double jeopardy rights have been infringed. It's sort of an unusual collection of justices in this case. There are two are already on the record as saying we have real questions about the separate sovereigns doctrine that is believe it or not Thomas and respect our Ginsburg who. Yeah. The twentieth sixteen opinion, but it didn't seem like they had enough allies to go that direction. Well, let's talk about the Manafort case in particular, or, you know, President Trump issuing a pardon which is federal and state authorities being able to come after someone even if the justices did away with this. There are still cases where state law in different state laws would allow you to go forward with the prosecution. Yes. So in the case of Paul Manafort, for example, he has been convicted of and pleaded guilty to a bunch of different federal counts. And and there's no question. Donald Trump has the power to pardon him from those under federal law. But the state of New York, for example, might well still have an interest in saying he engaged in tax fraud here in the state of New York. And even if the court were to overturn the separate sovereigns doctrine, it may be that New York could still vindicated, right? To protect its tax collection powers because that would be totally different conduct. And therefore wouldn't be implicated by the double jeopardy clause, Greg explained the movement among legal scholars and others to say that the separate sovereigns rule is a problem for people especially for poor people. Yes. It's actually very interesting because the legal arguments here, focus, it's all about originalism. It's all about what the fifth amendment mean at the time of its adoption. And the argument was that at the time the fifth amendment incorporated English law, which said that if you had been convicted in another country, you couldn't be prosecuted for the same thing in England. But nowadays comes up a little more frequently in a case like this one where you have a guy. This guy turns gamble who was convicted or what was charged under both federal and state law. As a possessing a gun is a convicted felon. He struck a plea agreement with state officials limited sentence, and then I tried to get the federal indictment this nest and is told he can't because of the separate sovereigns doctrine. So in a case like that, you have somebody who might be able to argue look I'm getting hit from from multiple sides. What's funny is we're talking about it now as well. We'll someone. You have a state prosecution after a federal prosecution, but in the past we've always talked about it as a federal prosecution concern after state prosecution. Yes. So where this has been used most notably this doctrine in the last several decades has been in the civil rights contact. So in the case of the beating of Rodney King, the police officers there were acquitted by a jury in California under state law, and then the federal government was able to bring federal civil rights charges against him and win a conviction that tends to be the dynamic nowadays that the federal government is sort of there as a backstop. That's Bloomberg news supreme court reporter Greg Stohr coming up on Bloomberg law after the government's sentencing memorandum's in the Michael Cohen case is President Trump in danger of being prosecuted after he leaves office. I'm Jim also this is Bloomberg imagine crackling fire. And silent nights trees decorated with sparkling lights..