Protecting The President

As we wait to see the fallout from the sham Kavanaugh hearing today, it must be noted what the despicable Orrin Hatch is doing in order to protect the President from the rule of law. Hatch has filed an amicus brief in the case of Gamble v. United States in support of a man who is challenging the 150 year old dual-sovereignty exception to the Fifth Amendment's protection from double-jeopardy. That exception allows someone to be charged for the same crime by both state and federal governments.

In the specific case, a man who had a prior conviction that meant he could not legally own a firearm was subsequently stopped for a traffic violation where police found a gun. The man was subsequently convicted by both federal and state prosecutors with illegal possession of a firearm which resulted in an extended sentence. The man is claiming that the convictions in both federal and state court for the same offence amounts to a violation of the Fifth Amendments double-jeopardy law which prohibits being prosecuted for the same crime twice.

On the face of it, that seems like a reasonable argument and there is no doubt that his has become a real issue as the number of federal felonies has grown exponentially in the age of "law and order" and the war on drugs. As Hatch writes, "The extensive federalization of criminal law has rendered ineffective the federalist underpinnings of the dual sovereignty doctrine. And its persistence impairs full realization of the Double Jeopardy Clause’s liberty protections." In fact, there are a number of states which have explicitly voided the dual-sovereignty exception by not allowing the state to bring the same charges after a federal prosecution. Unfortunately for the man in this case, he was arrested and convicted in Alabama which does not provide that extended protection.

The problem, of course, is that we live in Trump world. Overturning the dual-sovereignty exception at this point would effectively allow Trump to pardon all those involved and convicted in the Russia investigation and its offshoots without having to worry whether those individuals could then be charged and convicted again in state court. In fact, most observers believe that Mueller is specifically protecting his investigation from the possibility of pardons by ensuring that states could pick up those prosecutions. That plan would be unraveled if Gamble wins this case.

This case is further complicated by the fact that it will be heard by the Supreme Court in this upcoming term. It is clear that part of the reason that Kavanaugh was selected was his clear preference for unfettered presidential power. While Kavanaugh's potential views on the case are unknown, that preference may also indicate that he would be willing to overturn the dual-sovereignty exception. But Hatch's late interest in this case combined with the seeming determination to ram through Kavanaugh's confirmation at all cost raises real questions. In addition, it seems to be another example of the Republican party making extraordinary efforts to protect Trump. And it makes one wonder if they are actually also protecting themselves.