A Supreme Court Case Could Liberate Trump to Pardon His Associates
Paul Rosenzweig, a former senior counsel on the Whitewater investigation who serves as a senior fellow at the conservative R Street Institute, said he thinks the Hatch brief is “wrong substantively.” “If over-federalization of crime is a problem, we should stop over-federalization,” Rosenzweig said. “Hatch’s answer is to end federalism.”
But he cautioned that the case’s implications may not be as significant as they may seem. “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 me. But Trump’s pardon power is “explicitly limited in the text of the Constitution to pardons for ‘offenses against the United States,’” Rosenzweig said. If that language is interpreted to mean federal criminal offenses specifically, a Trump pardon wouldn’t protect against a state criminal prosecution, he said, no matter what happens to the double-jeopardy clause in Gamble.
Amid this legal murkiness, “overall” one thing is clear, Rosenzweig said: “A result overturning 200 years of dual sovereignty would very much muddy the waters.”