Brett Kavanaugh Could Have A Huge Impact On Robert Mueller’s Probe

Kavanaugh, Mueller and Trump

There’s a case at the Supreme Court that may have a huge impact on Special Counsel Robert Mueller’s Russia investigation. The High Court is considering double-jeopardy rules in a case that is focusing on whether and when being tried in state and federal courts for the same crimes is permissible. Under a current constitutional exception, it has been allowed for years.

If the Supreme Court gives a reversal, that would signal a massive change in how state, federal and tribal criminal cases are handled.

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The justices raised hard questions onThursday about being tried twice for the same crime in different jurisdictions – “a double whammy,” as Justice Ruth Bader Ginsburg put it. But a majority of the justices seemed inclined to preserve what the Trump administration calls 170 years of precedent allowing an exception to the double jeopardy provision.

Justice Elena Kagan said respect for precedent is a bedrock principle.

“Part of what stare decisis is, is a kind of doctrine of humility,” she said, “where we say we are really uncomfortable throwing over 170-year-old rules that 30 justices have approved just because we think we can kind of do it better.”

Justice Neil Gorsuch warned against prosecutorial zeal:

“With the proliferation of federal crimes, I think over 4,000 statutes now and several hundred thousand regulations, the opportunity for the government to seek a successive prosecution if it’s unhappy with even the most routine state prosecution is a problem.”

Meanwhile, the status quo being defended by the Trump Department of Justice holds potential implications for the targets of the Russia probe who are connected to the president. 

If Trump’s former campaign chairman, Paul Manafort, were to be pardoned by the president for various federal offenses, would a state then be allowed to pursue its own separate charges, including tax evasion or corporate fraud?

The Supreme Court’s ruling could have an impact on the answer.

The Constitution’s double-jeopardy clause in the Fifth Amendment prohibits anyone being “subject for the same offense to be twice put in jeopardy of life or limb.”

But the Supreme Court has also considered the “separate sovereignty” between state and federal prosecutions. That means similar charges for the same conduct but in different jurisdictions.

“If prosecution is part of the national security efforts of the United States, federal prosecution, then your position would substantially hamper those national security efforts,” Kavanaugh said.

But Justice Kavanaugh also raised a counter-argument. “From the perspective of negative liberty, freedom from government oppression or government regulation, your rule strikes some as an infringement of basic concepts of individual liberty.”

Kavanaugh added that overturning precedent requires showing an earlier decision was not just wrong, but “grievously wrong, egregiously wrong.”

Credit: Fox News