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« Reply #1 on: December 10, 2018, 05:24:05 PM » |
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The Patriot Post Digest 12-10-2018
From The Federalist Patriot
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FEATURED ANALYSIS
Double Take on the Fifth Amendment40
Robin Smith
A Supreme Court case is getting a great deal of attention in part because it would be contrary to 170 years of precedent and practice. But more attention-getting, it may have an impact upon Robert Mueller’s case involving Paul Manafort in the vastly overreaching special investigation to determine the extent of Russian interference in the 2016 election.
Oral arguments were heard Thursday in Gamble v U.S. The case involves an Alabama man who was arrested in 2015 for crimes that involved the illegal possession of a handgun. Terrence Gamble, a felon who had already served time in prison for a separate crime, faced both state and federal charges for this second failure to observe laws. The State of Alabama sentenced Gamble to one year in prison while an additional federal charge yielded a 46-month sentence on top of that. Gamble appealed this second sentence to the Eleventh Circuit Court, citing the Fifth Amendment.
The relevant text states, “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” Known more often for “pleading the Fifth” to avoid self-incrimination, the amendment, ratified with the original 10 in 1791, provides protections for citizens to prevent multiple trials for the same charge or offense. Specifically, one accused cannot be retried following an acquittal, following a conviction (without reversal on appeal), or after certain mistrials.
Gamble’s legal team argues that federalism is permitting the duplication of the conviction and the punishment on the same charge. Yet because American courts have both a state and federal structure, such dual prosecutions are frequent occurrences.
Each legislated body of law — one federal, the other state — governs the structure of the separate courts, their operations, jurisdictions, codes, regulations, and sentencing, and each is treated as a separated sovereign. Hence, the separate sovereigns doctrine permits the offense, in the case of Gamble, to have been acts against two separate sovereigns. Citing legal precedents in the appeals, in pre-Civil War era rulings the Supreme Court held to the standard of two different offenses. The Court, again, ruled in 1922 in United States v. Lanza that “an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each.”
The Wall Street Journal’s analysis41 of this case further includes Heath v Alabama (1985), which notes, “An offence, in its legal signification, means the transgression of a law. Consequently, when the same act transgresses the laws of two sovereigns, it cannot be truly averred that the offender has been twice punished for the same offence.”
SCOTUSblog reviewed oral arguments and concluded42 that the “majority appears ready to uphold [the] ‘separate sovereigns’ doctrine.” That analysis offered a bit of a play-by-play description of arguments and verbatims of the justices and the arguing attorneys. The conclusion here was pretty simple: It’s doubtful that the 170-year practice and precedent will be overturned. Yet Justices Ruth Bader Ginsberg and Clarence Thomas spoke in favor of a review of the doctrine. Ginsberg has previously suggested a reconsideration of the sovereigns doctrine, while Thomas voiced support of a “fresh examination” of the almost two-centuries-old legal practice.
Interestingly, all nine of the justices come from Ivy League law schools, where the discussion of double jeopardy is not a new one. Writings43 such as the Note from The Yale Law Journal, November 2014 edition, strain to separate the question to argue the duplication of punishment: “When the interests of a sovereign state are partially vindicated, the sovereign should be able to impart only as much additional punishment as is necessary to fully vindicate its interests.”
It’s almost amusing to see the mainstream media and the political Left arguing against the cause of a minority stopped for a traffic violation that resulted in a felony gun charge. Why? Because if the Court holds the current observance of the separate sovereigns doctrine regarding the Alabama man’s case, Paul Manafort, the former campaign chairman for Donald Trump who is likely to face charges by Robert Mueller’s federal team for everything except collusion with the Russians, would still likely face state charges on tax evasion or corporate fraud, despite a possible pardon from Trump. The Left can’t abide that.
The Supreme Court ruling is expected sometime in 2019. Based on opinions and analysis, it appears highly unlikely that such longstanding precedent would be overturned. Yet it is causing a double take on the Fifth Amendment and yielding some unlikely allies in wishing for a new look at an old doctrine.
https://patriotpost.us/articles/59931-double-take-on-the-fifth-amendment
OPINION IN BRIEF
Kay Coles James: “Immediately upon taking office, President Trump’s Cabinet began dismantling Obama’s climate legacy. Economically and environmentally, we’re better off without it. As the French very well know, energy taxes hit families and businesses multiple times over. We all feel the pain of higher energy prices directly at the meter and the pump, and indirectly at the grocery store and through almost all the goods and services we pay for, because energy is such a critical input to nearly every product businesses make. Add it all up, and you get fewer employment opportunities and a weaker economy. And all for what? A change in the global temperature would be practically undetectable. All economic pain and no environmental gain. No wonder the French are dissatisfied and Macron’s climate policies are wildly unpopular. Without these expensive, ineffective policies, we’ll be wealthier and have more resources to tackle whatever challenges come our way. The acting EPA administrator has a Herculean task in correcting an agency that had run rogue for eight years under the Obama administration. But families and businesses across the country will feel the impact, and be thankful for it.”
SHORT CUTS
The Gipper: “We don’t have a trillion-dollar debt because we haven’t taxed enough; we have a trillion-dollar debt because we spend too much.”
Upright: “Young Democrats who line up behind the likes of Bernie Sanders and Alexandria Ocasio-Cortez are in for everything and anything so long as it’s free. The only item they seem ready, even eager, to forego is freedom.” —Burt Prelutsky
Braying Jackass: “I’m so conflicted on this issue because on the one hand [devastating disasters are] good news in a sense that we can feel [climate change] in our lives now — that we’re beginning to see floods and wildfires and all sorts of things that are directly being produced by the forces at work here in our changing climate. And yet, at the same time, scientists have always said to us that by the time we actually tangibly feel it in our own lives, it’s kind of too late. And so, there’s a real sort of real mixed blessing here in the fact that we’re actually experiencing it day-to-day now.” —NBC’s Jacob Ward
Hyper-drooling: “There’s a very real prospect that on the day Donald Trump leaves office, the Justice Department may indict him.” —Rep. Adam Schiff (D-CA)
Friendly fire I: “Part of being an elected official is not only taking strong political positions and executing them fairly, it’s also being able to manage the people you entrust with responsibility. In this case, [Sen. Kamala] Harris has fallen short. Harris owes the voters more than just a four word denial on the steps of the U.S. Senate. She should fully explain her relationship with [Larry] Wallace, and, by extension, her staff and why it insulated her from an issue upon which she has taken a leading national role.” —Sacramento Bee editorial board showing vexation with Harris’s supposed cluelessness regarding harassment by a now-fired aide
Friendly fire II: “[Sen. Elizabeth] Warren missed her moment in 2016, and there’s reason to be skeptical of her prospective candidacy in 2020. … While Warren is an effective and impactful senator with an important voice nationally, she has become a divisive figure. A unifying voice is what the country needs now after the polarizing politics of Donald Trump.” —Boston Globe editorial
And last… “People keep saying you shouldn’t be penalized for old opinions. You shouldn’t be penalized for your opinions now! You have a perfect right to disapprove of homosexuality or heterosexuality or anything else. Censorship won’t create a world of tolerance, just a world of lies.” —Andrew Klavan
https://patriotpost.us/articles/59942-monday-short-cuts
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