For the past few days, numerous Palmer Report readers have been asking me to weigh in on the legitimacy of a recent media narrative claiming that Brett Kavanaugh could help the Supreme Court pave the way for Donald Trump to protect his Trump-Russia underlings from state level criminal charges. I’ve been reluctant to comment yet, because I’m still digging into the realities of it, and the issue is a complicated one. But since so many of you have been asking, I’ll tell you what it looks like to me so far.
To be clear, the underlying facts of what’s been reported are accurate. There is a case known as Gamble v. United States which would seek to make it difficult or impossible for states to bring the same charges against a person that the federal government has already brought. The argument is that, while this practice has long been commonplace, it’s double jeopardy. It’s also true that Senator Orrin Hatch recently filed an amicus brief, arguing that this does in fact constitute double jeopardy.
It’s not difficult to see the connection that this case has to Donald Trump and the Trump-Russia investigation. As the law stands now, if Trump were to pardon one of his underlings on federal charges, that person could then be hit with state level charges for the same crimes. So even if Trump were to pardon them on federal charges, this wouldn’t save them from needing to cut a plea deal to stay out of prison. Let’s say that the Supreme Court rules that the same person can’t face jeopardy from the Feds and the states for the same crime. Trump could then pardon his people and get them off the hook entirely, leaving them no reason to flip on him – or could he?
Gamble v. United States raises a number of legal questions. For instance, on paper, the case is ostensibly challenging the scenario in which the Feds bring charges but fail to land a conviction, and then the state tries to bring the same charges, putting the person on trial for the same crime a second time. But if someone is pardoned on a federal level, were they technically facing legal jeopardy to begin with? Would it matter if they were charged and/or put on trial before they were pardoned? The Supreme Court would have to spell this out.
In addition, as a practical matter, this could be worked around in by Trump-Russia investigators. The Feds could simply choose not to bring charges on certain crimes, allowing the states to do it instead. That would clearly only constitute single jeopardy, and Trump wouldn’t be able to pardon those state level charges. This is a chess game, and while some chess pieces are more powerful and relevant than others, there are no chess moves that are going to magically clear the entire board.
So let’s say that Donald Trump is able to hurry up and put Brett Kavanaugh (or a replacement nominee) on the Supreme Court before the Gamble v. United States case can be heard. This would give Trump five conservative votes. But it would not necessarily mean that he’d have five votes in his favor on this particular issue. This case does not land on clear cut ideological fault lines, and it wouldn’t be shocking to see a traditional conservative – John Roberts for instance – ruling against Trump on this.
But none of the above probably matters anyway, and this is part of why I’ve been hesitant to write about this issue. People like Paul Manafort and Michael Cohen have already cut their plea deals and turned over all of the evidence and testimony that they have against Donald Trump. There is nothing that Trump could ever accomplish by pardoning them, because they’ve already (past tense) sold him out. Pardoning them would not make that evidence go away, not under current rules, and not even if Gamble v. United States were to go in Trump’s favor.
The bottom line continues to be that there are no magic wands, for either side, in the Trump-Russia scandal. For the past year and a half the mainstream media has consistently and falsely portrayed Trump-Russia pardons as if they were in fact a magic wand that Donald Trump might wave at any moment. This has never remotely been the case. Even Trump knows that, which is why he hasn’t bothered to try pardoning a single Trump-Russia participant. For the most part, the “magic pardons” narrative is a ratings-grab by the media, designed to scare you into staying tuned in. It’s why I try to address Trump-Russia pardons as rarely as possible; they’re simply not that relevant.
Bill Palmer is the publisher of the political news outlet Palmer Report