Trump can dodge federal crimes with pardons — but not state law

Once again, President Trump seeks to be hoisted on his own petard. His reaction since Charlottesville has placed him firmly on the side of those who are trying to preserve the confederate monuments and flags rapidly being brought down across the country. In doing so, Trump is supporting “states’ rights,” the euphemistic characterization that glosses over the history of slavery these symbols represent.

But states’ rights take on a different meaning in the realm of criminal law. News that special counsel Robert Mueller has paired up with New York Attorney General Eric Schneiderman suggests that he might be taking advantage of the special relationship states have with the federal government in the realm of criminal prosecution to end run the president’s pardon power — if he is, then “states’ rights” might just become Trump’s Achilles heel.

{mosads}Robert Mueller’s investigation is a federal investigation that is proceeding on two tracks: a counterintelligence track and a criminal track. Most of what is discovered in the former may never come to light, given that it is based on classified methods and sources. But what Mueller uncovers in his criminal investigation will become public in the event that he brings criminal charges. President Trump, however, could undercut this possibility by granting pardons to the targets of Mueller’s investigation if they are convicted. He could even pardon Mueller’s targets preemptively, leaving potential prosecutions of federal crimes dead in the water before they even begin.

Unfortunately for Trump, the story may not end there. This is because a legal principle called “dual sovereignty” allows a state (or multiple states) to prosecute people for the same crimes as the federal government, if the conduct constitutes a crime and was committed in that state.

This is true even if the person has already been tried by the federal government.

Under the dual sovereignty principle, the Fifth Amendment’s prohibition on double jeopardy — which prevents the government from trying someone twice for the same crime — doesn’t apply if the second trial is by a different “sovereign” — in this case, the state.

How is this possible? The idea of dual sovereignty rests on the premise that the power of the states to prosecute crimes existed before the creation of the federal government, and is reserved to them by the Tenth Amendment to the Constitution. As a result, everyone is a citizen of both the United States and of a state or territory — and therefore owes allegiance to the laws of each. What’s more, the United States and an individual state may be protecting different interests, even if they are prosecuting the same crime.

A good example would be if someone murdered a U.S. marshal in, say, Virginia. A federal prosecution might be brought under a statute that makes it a crime to threaten or kill public officials. And a state prosecution might be brought for second-degree murder. In the former case, the United States has an interest in protecting the safety of its public officials. In the latter case, the State of Virginia has an interest in deterring crime and protecting its denizens from dangerous offenders.

Supreme Court Justice Felix Frankfurter put this in “states’ rights” terms in a 1959 case called Bartkus v. Illinois, writing “it would be in derogation of our federal system to displace the reserved power of the States over state offenses by reason of prosecution…by federal authorities beyond the control of the states.”

The states’ rights argument for New York to pursue its own prosecutions against members of the Trump team is especially sound. In particular, many of the lines of inquiry that Mueller is pursuing appear to involve possible financial crimes, like money laundering or tax evasion.

Critics of Mueller’s investigation, including Republican members of Congress and the president himself, have argued that looking into these crimes exceeds Mueller’s mandate, which is to get to the bottom of Russia’s interference in the 2016 election. By contrast, New York, as the financial epicenter of the country, has a very direct and vested interest in ensuring the integrity of its financial institutions and in ensuring that its citizens have not been defrauded by people doing business in the state who haven’t paid their taxes.

In fact, given that the bulk of criminal laws rests with states, not the federal government, a true states’ rights advocate might argue that the State of New York ought to protect its interests by prosecuting every possible charge it can — which may arguably exceed the number and type of crimes that might be available to Mueller.

The downside for Trump is that his presidential pardon power does not extend to state crimes — for the same reasons that underlie the dual sovereignty principle. Mueller, of course, knows this, and may be setting up the infrastructure to allow Schneiderman to pursue any prosecutions in the event he can’t – or to conduct them simultaneously.

Either way, Trump may soon learn that the “states’ rights” ostensibly represented by the monuments and flags he reveres includes the power to bring his campaign team — and even him — to justice.

Asha Rangappa is a former special agent in the Counterintelligence Division of the FBI in New York City. She is currently an associate dean at Yale Law School. Follow her on Twitter @AshaRangappa_.