NEW YORK, NEW YORK, IT'S A WONDERFUL TOWN!

The latest revelations from Mueller, by means of the Manafort and Cohen sentencing memoranda, strongly suggest that in a short while it will become clear beyond a reasonable doubt that i) our president is a criminal, ii) his son is a criminal, iii) his son-in-law may be a criminal, and iv) his former campaign manager, a convicted criminal who has lied about his connections to Russian operatives, is facing a very long prison sentence.

This leads to frequent discussions in the press and elsewhere about both the likelihood and the consequences of a federal pardon for all members of the Trump Crime Family.

And that leads to a discussion of the rights of a state to prosecute members of the TCF for conduct that violated state law.

Likelihood of a Pardon:

First things first. There cannot be much doubt about the likelihood of presidential pardons here. There is no way The Donald is going to let Junior go trial, no less go to prison. And the same is true with respect to his daughter's husband. As to Paul Manafort, it is clear i) his lawyers already have had pardon discussions with Trump emissaries, ii) Trump is a strong supporter of Manafort, and iii) Manafort apparently has information that is highly prejudicial to Trump's claim of "no collusion."

This leads ineluctably to the conclusion that members of the TCF will be pardoned before the termination of Trump's presidency in January, 2021.

Consequences of a Pardon:

Here we have signs of mass confusion. The press has done a terrible job explaining a few unambiguous legal principles.

First principle: a federal pardon has no effect on state prosecutions. The president does not have the power to pardon a defendant accused of a state crime.

Second principle: The Double Jeopardy Clause of the federal Constitution does not prevent a state prosecution for violation of state law, even if it is for the identical conduct that was the subject of a federal prosecution. (That has been the historic interpretation of the Double Jeopardy clause. A case challenging that result was argued in the Supreme Court earlier this week. From statements made by the Justices during the argument, it would appear that the Court is unlikely to reverse its prior rulings. In any event, no result there would affect any conclusions in this post.)

Third principle:

Even in states such as New York, where a statute bars "double jeopardy" prosecutions, the prohibition applies only where the elements of the state and federal crimes are identical. In other words, if the federal prosecution was based on a statute that required proof of an element, such as specific intent, conspiracy, etc., that is absent from the state statute, the crimes are not the same, and the state's double jeopardy rule does not apply.

Fourth principle:

Even if the elements of a charged crime are identical, and a state statute forbids double jeopardy, there is no double jeopardy defense for the second prosecution unless the accused has actually been put "in jeopardy" in the earlier case. As a matter of both federal and state law, a defendant does not suffer jeopardy unless he is actually put on trial, a jury has been sworn, and a verdict has been reached. For example, Manafort was tried in Virginia on 18 counts including money laundering and bank fraud. He was convicted on 8 counts, and there was a hung jury on ten counts. Courts have held that a mistrial does not result in "jeopardy" attaching, so that Manafort may be tried again on those ten counts. He can be tried by Mueller, or, in the event he is pardoned by Trump, he can be indicted and tried by New York (or Virginia) on any of those counts that involve a violation of state law. And in the D.C. case, Manafort's plea deal covered only two counts, and Mueller agreed not charge many others.  All those other crimes could be charged by the feds, as well as any state that can find applicable state criminal statutes.

Summation:

A federal pardon does not proscribe all state prosecutions.  New York state would be free to prosecute Trump Senior and all other members of the TCF who received federal pardons, except for those federal defendants who were actually convicted, or acquitted at trial, of federal crimes. But even as to those, the state prosecutions would be barred only if the elements of the state criminal statutes were identical to the elements of the federal statutes that were the basis of those convictions.

Bottom line, a federal pardon is not going to help any Trumpians escape New York justice unless Trump is willing to let the members of his family i) be indicted by the feds, ii) go to trial in which a jury is sworn, (and if the trial goes to verdict, the jury convicts or acquits), and iii) the NY State indictment is for an identical crime as the federal indictment,

Conclusion: Manafort made a bad call all the way around. He is now screwed whatever he does, though he may have helped the members of the TCF by withholding evidence of their complicity -- for a while.

As to the other members of the TCF, their best strategy now might be for Jared to be the point man for negotiating a family-wide relocation to Israel or Saudi Arabia.

A bientot!