Why a Kavanaugh confirmation could limit the NY AG’s power

Judge Brett Kavanaugh is sworn in before testifying to the Senate Judiciary Committee
Judge Brett Kavanaugh is sworn in before testifying to the Senate Judiciary Committee
Pool via CNP/Shutterstock
Judge Brett Kavanaugh is sworn in before testifying to the Senate Judiciary Committee during his Supreme Court confirmation hearing on Capitol Hill.

Why a Kavanaugh confirmation could limit the NY AG’s power

The window to prosecute Trump or his associates may be shrinking.
October 5, 2018

Democratic New York attorney general nominee Letitia James – who is widely expected to win election in November – ran on the promise to be a legal backstop against President Donald Trump. She argued that if Trump were to pardon himself or associates convicted of federal crimes, that she, as attorney general, could then charge them again in New York under state law, “safeguard(ing) against President Trump’s attacks on the rule of law in our country.”

But, if the U.S. Senate confirms President Trump’s nominee Brett Kavanaugh to the Supreme Court, that might be impossible.

The Supreme Court will hear a case in the upcoming term that could bar New York from prosecuting crimes that already have been tried at the federal level. This issue was raised most recently by Natasha Bertrand, a staff writer at The Atlantic, and it’s previously been written about by Fordham University Law Professor Jed Shugerman in Slate, among others. The case is Gamble v. United States, and the issue at hand, as SCOTUSblog writes, is “whether the Supreme Court should overrule the ‘separate sovereigns’ exception to the double jeopardy clause.”

The Fifth Amendment to the U.S. Constitution forbids double jeopardy – keeping individuals from being prosecuted more than once for the same crime. But a Supreme Court ruling more than a century ago provided an exception known as “separate sovereigns” that allows state and federal courts to prosecute for the same crime, since the systems are sovereign and different. The case being heard by the court, Gamble, arose from an Alabama man who was tried in both state and federal court for the same instance of being caught with an illegal handgun. The case seems far away from the White House, but it’s possible that the Court’s ruling could be broad – reaching even to Trump.

But even if the Supreme Court overturns the separate sovereigns exception precedent, the circumstances in which that would determine New York’s ability to prosecute Trump or his associates for potential crimes uncovered by Special Counsel Robert Mueller may not arise.

First, Trump would have to issue a pardon to individuals who have been convicted or pleaded guilty in cases arising from the investigation, such as Trump’s former campaign manager Paul Manafort and his former lawyer Michael Cohen. If Trump issued pardons, New York law as it stands wouldn’t let the attorney general prosecute right away. There may be a federal exception to double jeopardy, but it’s illegal in New York, too. So the state would need to pass a law to change that, letting state prosecutors take up crimes that have already been tried federally. There’s no chance the Republican-controlled state Senate would do such a thing. But Democrats may win a state Senate majority in November and consider the legislation. The Assembly’s Democratic majority signalled support of such a move to City & State in August, and Gov. Andrew Cuomo, Attorney General Barbara Underwood and James are all in favor.

Depending on if and when Kavanaugh is confirmed, he may be one of the nine justices deciding Gamble. Without Kavanaugh, the liberal and conservative wings of the court are split evenly, four to four. If the justices voted on party lines, Kavanaugh’s seat would make the difference between a five to four majority overturning the precedent and a tie. Ties cannot overturn previous rulings and so the separate sovereigns doctrine would be effectively upheld. Though Kavanaugh declined to answer hypothetical questions regarding presidential pardons, he has a relatively expansive view of presidential power and many observers believe that Trump favors him for this very reason. Kavanaugh is also a career Republican lawyer who worked in the George W. Bush administration. He also is a consistently conservative jurist and he has offered fulsome praise of Trump.

Whether or not a Justice Kavanaugh would vote to overrule the ‘separate sovereigns’ exception, some observers don’t think he should be involved in a case that could so directly involve the president who nominated him and that he should recuse himself from the case. “(T)here is no way Kavanaugh should be confirmed while he may be the deciding vote on a case directly impacting double jeopardy law and the Trump investigation,” Shugerman wrote.

The office of the current New York attorney general, Underwood, declined to comment on the Gamble case, but the likely next attorney general is keeping her eye on it.

“This case represents a significant threshold issue to confronting corruption in D.C. and ensuring state attorneys general have the tools to bring anyone who breaks the law to justice – even if they are friends with the president,” James said in a statement emailed to City & State. “While this case might not directly deal with the Mueller probe, it underscores why states’ rights are so important, and why we must close New York’s double-jeopardy loophole as quickly as possible."

Even if the court were to rule on Gamble in a way that expanded the double jeopardy clause, the New York Attorney General could still sue Trump or his associates in other ways, such as bringing a case on the emoluments clause, which bars the president from accepting gifts from foreign officials. By some legal interpretations, an attorney general would not even need to commit double jeopardy to prosecute individuals like Manafort or Cohen following a pardon. To put it simply, they have each been accused of committing so many different crimes that New York could go after the ones that were left out of their plea deals.

So, no matter what happens in Washington, they may still be truth to what James told Yahoo News in August: “The president of the United States has to worry about three things; Mueller, Cohen, and Tish James.”

Jeff Coltin
is a staff reporter at City & State. He covers New York City Hall.
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