The Supreme Court Case Fueling Republicans’ Rush to Confirm Brett Kavanaugh
Paul Rosenzweig, a former senior counsel on the Whitewater investigation who serves as a senior fellow at the conservative R Street Institute, told Bertrand that he disagrees with Hatch’s interpretation, calling it “wrong substantively.”
“If over-federalization of crime is a problem, we should stop over-federalization,” Rosenzweig said. “Hatch’s answer is to end federalism.” And it may not be all gloom and doom just yet.
“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 Bertrand, because “explicitly limited in the text of the Constitution to pardons for ‘offenses against the United States.’”
So what does this mean, potentially?
“If that language is interpreted to mean federal criminal offenses specifically,” Bertrand writes, “a Trump pardon wouldn’t protect against a state criminal prosecution, he said, no matter what happens to the double-jeopardy clause in Gamble.”
At the very least, Rosenzweig said, “a result overturning 200 years of dual sovereignty would very much muddy the waters.” Yeah, no kidding.