Hypothetical: Manafort is pardoned by Trump against federal tax/fraud convictions now in the news; can state courts under state law properly adjudicate if local prosecutors go after comparable claims re state taxes and criminal fraud under state law?
The Justice Department has taken the separate sovereigns position that a President can only pardon those convicted of federal crime, but that state convictions require clemency petitions to state governors.
But what of double jeopardy; being tried a second time if acquited in either a federal or state court, and the other of the separate sovereigns moves against the same conduct. First, presume elements at each level for the crime are the same, what then, and what if at the two levels the elements of the offense are different by statute? While that is a distinction deserving mention, limit the question by presuming identity of the elements required to convict, both levels, what then?
Over a month ago The Volokh Conspiracy website considered double jeopardy:
[The Supreme ...] Court has long held that this [double jeopardy part of the Bill of Rights] only bars reprosecution by the same sovereign: The federal government may reprosecute a person after a state prosecution (and vice versa, and in principle the same for multiple states, in the rare cases where multiple states both have jurisdiction over the crime).
In Commonwealth v. Sanchez (2016), Justices Ginsburg, joined by Justice Thomas, argued that this doctrine should be reexamined:
I write only to flag a larger question that bears fresh examination in an appropriate case. The double jeopardy proscription is intended to shield individuals from the harassment of multiple prosecutions for the same misconduct. Current "separate sovereigns" doctrine hardly serves that objective. States and Nation are "kindred systems," yet "parts of ONE WHOLE." The Federalist No. 82. Within that whole is it not "an affront to human dignity," Abbate v. United States (1959) (Black, J., dissenting), "inconsistent with the spirit of [our] Bill of Rights," to try or punish a person twice for the same offense? Several jurists and commentators have suggested that the question should be answered with a resounding yes: Ordinarily, a final judgment in a criminal case, just as a final judgment in a civil case, should preclude renewal of the fray anyplace in the Nation. The matter warrants attention in a future case in which a defendant faces successive prosecutions by parts of the whole USA.
Today, the Court agreed to consider the issue, in Gamble v. U.S. For an earlier petition that makes what strikes me as a powerful originalist argument against the "separate sovereigns" doctrine, see this 2013 certiorari petition written by my UCLA colleague (and legal historian) Stuart Banner.
[links in original] The Trump/Pence ticket was for federal office, but in each state the ticket was put to the population of each state, so presumably there would be state authorities having standing for prosecution under a local campaign regulation law applicable within a state, for violation of a state's statute independent of any jurisdiction of a state to pursue a concurrent jurisdictional look at both state and federal criminal law. Likely there is definitive law on powers of county prosecutors or state Attorneys General on that question, so readers may research it. That question goes beyond the scope of this post.
Since the Michael Cohen federal plea deal is reported as a guilty plea to federal election law violation, there likely would be implication of others arising from testimony Cohen might, by agreement, provide in some later federal prosecution for accessorial liability or original liability for such other persons, same offense. A conspiracy allegation may also arise under present media reporting of alleged factual events.
Bunches of interesting leagal doctrine dimensions seem attached to current events. Lawyers might do well for themselves over the next year or two.
Add to uncertainty, what was the Gamble decision below; and what if there is delay in reaching a nine-member court so that a lower court decision stands if the Supremes deliver a 4-4 split? Readers interested in that question are encouraged to research it online.
____________UPDATE_____________
More opinion on the reach of the Presidential pardon power, here and here.