There’s a reason Robert Mueller’s enente with New York Attorney General Eric Schneiderman is in the news. It stands as a stark reminder to President Trump that the president is not above the law.
Certainly, Trump had the power and the prerogative to pardon Joe Arpaio. He might also pardon anyone he pleases if a federal grand jury returns an indictment in Mueller’s Russia probe. This removes a big lever prosecutors have to “roll up” witnesses by making immunity deals.
But what Trump cannot do is pardon individuals accused or convicted of state crimes. That’s a feature of our federal republic. We have more than one body of law, more than one body of lawmakers, and more than one constitution governing our nation.
We hear about high profile SCOTUS cases that overturn large swaths of state and federal law–Obergefell v. Hodges overturned many provisions in state constitutions recognizing only marriage between one man and one woman, for example. But in criminal prosecutions, there is no overriding federal jurisdiction.
In fact, federal prosecution has been used as a backstop in various cases for civil rights violations and hate crimes, when state law does not fulfill what’s perceived to be justice. Politics is upstream of most justice in these cases, but in Trump’s case, this move is a well-timed message to remind him that any pardons he grants give prosecutors at the state level an advantage.
If a federal case is never tried, then there’s no “double jeopardy”–being tried for the same crime twice–which is prohibited by the Bill of Rights (5th Amendment). Trump would have to allow a trial at the federal level to take place, including whatever discovery and evidence goes along with it, then issue a pardon after a conviction.
He may very well do that with Paul Manafort, who seems to be the calf ready for sacrifice for any potential scandal to make Trump’s Russia headaches disappear. He could be the Scooter Libby, prison-bound. Or Trump could pardon him.
Or–and this is the worry for Trump and his family–prosecutors could cut a deal with Manafort. Trump can’t pardon for state crimes. The deal may be with Schneiderman, not Meuller. Then state prosecutors can begin their “rollup” of witnesses. Since the entire Trump family lives (officially) in New York, this could spell trouble.
So far, there’s nothing concrete tying Trump himself or even his close family to any crimes, at least nothing public.
This investigation is a chess match right now. Trump made his move, and Mueller has made a better one, putting Trump and his lawyers in check.
The president certainly needed the reminder: this is a federal republic, not a banana republic. Nobody, including the president, is above the law.
This post also appears in The New Americana.