Yesterday, Mitch McConnell promised that the vote to confirm Brett Kavanaugh to the Supreme Court bench, would happen later this week. This, despite a “thorough” FBI investigation which spoke to neither Kavanaugh nor Dr. Ford, and which failed to speak to eight witnesses provided by the Ford camp, another twenty from Debbie Ramirez and a further twenty or so who knew Kavanaugh and his cronies, and had valuable information which they tried unsuccessfully to share with the FBI. Essentially, the FBI investigation did little more than confirm that some of the known witnesses, a number of whom never did have relevant information, said what we thought they said. It smacks of a whitewash, from start to end.
So, to many, the investigation is far from finished, but to McConnell, the time to vote is right now. We should all be asking ourselves, “Why the rush?” On the one hand, it might be suggested that McConnell fears that the midterms will flip enough of the Senate seats that the Republicans may not be able to muster enough votes to confirm Kavanaugh. But the reality is that even if the Republicans lost in November, the sitting Senators would not leave office until January. That would leave ample time for a vote.
No, McConnell wants that vote right here, right now, for an altogether different reason. This October, on the Supreme Court docket is a case numbered 17-646, Gamble vs. US, and a five to four vote in a conservative led Supreme Court decision, is all that is needed to make Trump’s claim that he could “shoot someone in the middle of 5th Avenue and not lose any voters” more than a distasteful threat.
At the heart of Gamble vs. US is the desire to overturn a portion of the double jeopardy law known as “separate sovereigns.” Briefly, the double jeopardy law says that a person can not be tried twice for the same offense. Whether initially acquitted, sentenced or pardoned, that person should be free from further prosecution. Where this often comes into play is when a person is on trial for a crime that is an offense at both a state and a federal level (separate sovereigns). Gamble was tried and found guilty of a felonious gun possession, by both the state of Alabama and the federal government, sentenced by both, and has been arguing that his sentencing twice for the same crime is a violation of his protection under double jeopardy laws.
In numerous writings, Kavanaugh has already come out in favor of expanding the power of the executive branch, and the legitimate concern here is that he would cast the deciding vote to overturn this section of the law. So, why should we be concerned?
If the separate sovereigns clause is overturned, it would extend to the executive branch, for now the Trump administration, the ability to pardon criminality at a federal level and leave the state unable to prosecute under the double jeopardy statutes. Right now, the state of New York is suing the Trump Foundation for campaign finance law violations, for using a charitable organization to settle legal claims against his businesses, for personal spending through a charity and for using the charitable Foundation’s funds to curry political favor. New York State has also turned over its evidence to the IRS, that at a federal level, they may also seek to prosecute Trump and his family. Abolishing separate sovereigns would give Trump the ability to pardon his children and possibly himself at the federal level, and leave the state unable to prosecute him.
How else might this play out? Manafort and Cohen are in the process of working deals with the Mueller investigation, giving their testimony to avoid further prosecution and prison time. A Trump pardon could make both of them free men, and prevent them from further prosecution, thus rendering Mueller’s deal, worthless. At that point, what is their incentive to give testimony against Trump? It has also been reported that Russian oligarch money has wended its way into more than just the Trump presidential campaign. Evidence is strong that Mitch McConnell, Marco Rubio and Lindsey Graham also received large sums of money in their campaign war-chests from Russian donors possibly tied to the Kremlin. The promise of a pardon from Trump would not only keep these three out of prison, but would also incentivize them to vote against impeachment, should Mueller’s investigation come to that.
In the end, our biggest worry should be that the members of our federal government are positioning themselves to be, if not above the law, immune to it. When a member of our government, be it at the executive, legislative or judicial branch, commits a crime, the “placeness” of where that crime was committed is what allows our state and local attorneys general to launch investigations and to prosecute. They are our voices against a corrupt government. They are our watch dogs. Removing the separate sovereigns clause has the distinct potential to render those dogs toothless.
The Trump administration has insisted that immigrants are the enemy from without and that journalists are the enemy from within, two positions right out of the Nazi playbook. Now, this same administration is positioning itself to pay no penalty for corruption, because that presidential pardon covers all sins. In time, we should be able to change this administration at the ballot box. But as long as the conservative right maintains that 5-4 swing vote advantage on the Supreme Court, the decisions they make now will enable corrupt politicians for decades to come. So, ask yourselves again, “why does McConnell need this vote, right now?”