I agree with all these "wake me up when it happens" poster, because I just generally don't like "nothing happened" news.
But seriously, say Trump (or whoever might have been in his place) actually wants to do this as a populistic move: is it hard to do? Does it require any bureaucratic bullshit, arguing with people, forcing stuff, or is it just some paper to sign and it's done? Does it require any effort (and how much) on his side to actually pardon Snowden?
If you'd been paying attention you'd know that the President has the absolute, unquestionable power to pardon offenses against the United States, which specifically means: offences under Federal law, but not offenses under State law.
Pardoning a whistleblower who was just trying to protect the Constitution and help stave off intelligence agencies from spying on everyone a bit less seems like exactly what pardons were created for. What bigger injustice is there than upholding the law of the land and being declared a traitor despite only trying to help save our democracy from autocratic forces?
This was an idea floated recently in a backlash against the President looking to pardon Paul Manafort. ...but it is unclear if it holds any legal water.
The reality is that it is legally untested, and there's a good chance that Double Jeopardy will protect someone who's pardoned Federally, and then brought up on State charges for the same offense.
I might be wrong, but I don't believe there's ever been a case of a State prosecute even attempting to charge someone at the State level with an crime they've already been pardoned of by the President.
A quick read through of the Wikipedia article for double jeopardy[0] describes implications and legal tests for double jeopardy.
The shortest summary I can make of that article that seems relevant is this:
If you need exactly the same set of facts to prove crime A as crime B, or fewer facts than A to prove B, then they are the same crime. If crime B needs one fact not required for A, then it is a different crime for purposes of double jeopardy.
Based on this reading, it appears that a federal pardon would not imply no state charges. Or, a federal pardon leaves the question of state charges an open one.
>> [the president can pardon] offences under Federal law, but not offenses under State law.
> but it is unclear if it holds any legal water.
The claim that POTUS cannot grant clemency for a state conviction definitely holds legal water.
The plain meaning of that clause is extremely clear and its meaning is thoroughly and universally understood in the legal field.
> The reality is that it is legally untested
Re: POTUS directly granting clemency for state convictions, only in a sort of vacuous way. Meaning, this is true for almost everything that is blatantly unconstitutional. E.g., the president having the military disband congress is also "legally untested". I have zero doubt that the current SCOTUS would unanimously reject an attempt by the president to directly grant clemency for a state conviction.
> there's a good chance that Double Jeopardy will protect someone who's pardoned Federally, and then brought up on State charges for the same offense.
Notice that the only reason this indirect argument is made is because POTUS clearly cannot grant clemency directly.
Although this particular theory about Double Jeopardy has not been tested, there's an entire legal doctrine that addresses this question (the Dual Sovereignty Doctrine). The Roberts Court affirmed this doctrine in Gamble.
The primary justification for the Dual Sovereignty Doctrine is that different sovereigns might have different interests. That justification speaks directly to whether the federal executive should be able to grant clemency for state convictions (no, because the state executive might have different interests in prosecution). See https://constitution.congress.gov/browse/essay/amdt5_2_1_2_2...
So,
1. the President very clearly cannot directly grant clemency for state convictions, and
2. the Roberts court affirmed the Dual Sovereignty Doctrine not one year ago in a 7-2 decision. Go read that decision -- the reasons for upholding the Dual Sovereignty Doctrine speak almost directly to the question at hand.
Given these two facts, it's highly improbable that the President could pardon a federal conviction and then convince the Roberts court to extend that clemency to state convictions via a significant narrowing of the Dual Sovereignty Doctrine. In fact, I'd say that a raw exercise of force is more likely to succeed.
The police officers in the Rodney King case were tried and acquitted in State court, then tried and convicted of essentially the same crime with a different name in Federal court, and the courts declined to say this violated the Double Jeopardy clause. It's not necessarily the case that the courts will allow the same thing when the State seeks to try a defendant after they are acquitted in Federal court or pardoned by the President, but it seems difficult to me to distinguish the two kinds of cases, so I'm assuming it's more likely than not that if POTUS pardons Manafort and NYS wants to try Manafort, they will be able to.
IMO the Rodney King case was a very bad precedent. It was very bad politics for the Federal courts to do otherwise, I understand, but it was not a good decision. The SCOTUS essentially held that a) Dual Sovereignty means the Double Jeopardy clause doesn't apply, b) that the courts can use the double jeopardy condition as a mitigation in sentencing. (b) can be seen as weakening the Dual Sovereignty doctrine, but (a) can be seen as a disaster because the 5th Amendment is incorporated against the States, and the Double Jeopardy clause is in the 5A, so allowing the Dual Sovereignty doctrine to overcome Incorporation doctrine seems like a gross error that puts the entire Incorporation doctrine in... jeopardy. Shall we now say that only parts of the 1A, 2A, 4A, 5A, are incorporated against the States? Which parts? This invites more litigation.
Of course, that didn't happen, IIUC. There's been no litigation arguing that if Dual Sovereignty overrides Incorporation in one case, it might in others. But it could yet happen.
Reasonable. But returning to Snowden, “one executive wants to pardon and the other doesn’t” is pretty much by definition a case of differing interests. IMO this question is more clear-cut than typical DJ questions.
It’s just really hard for me to believe that POTUS could protect Snowden from prosecution in state courts via pardon. At the very least, a DOJ that wants Snowden in prison can side-step this whole question by leaving it to a state and keeping things out of federal court...
The case up-thread was Manafort -- NY State, IIRC, wants him in jail and may prosecute if pardoned. I'm not sure which State laws Snowden might have violated, or which States might want to prosecute him. BTW, I can see an argument against double jeopardy in the Federal->State direction as opposed to the State->Federal direction: the former, if allowed, could see a defendant tried as many times as there are States + 1, and that can't possibly be in the interest of Justice.
> I can see an argument against double jeopardy in the Federal->State direction as opposed to the State->Federal direction: the former, if allowed, could see a defendant tried as many times as there are States + 1, and that can't possibly be in the interest of Justice.
+ a lot more than 1 because of Native American jurisdictions
It's a good pint, but the crime would have to occur in overlapping jurisdictions, which doesn't apply in the case of Manafort. I think even in the case of Snowden it'd be difficult to argue for jurisdiction outside of HI and maybe any states he passed through with HDDs.
I just searched for drug trafficking and computer fraud cases that resulted in multiple charges for the same act in several states. I couldn't find any particularly egregious cases.
I'm not even sure how important this is in the case of computer crime; jurisdiction gets hairy really fast.
> a lot more than 1 because of Native American jurisdictions
Native American jurisdictions generally only have criminal jurisdiction over their own members for actions on their own land, that jurisdiction is Constitutionally an application of federal sovereignty, so where it applies it doesn't add an additional possible prosecution, just replaced (or provides an additional option) for one of the existing possible prosecutions. So, there's no double jeopardy impact.
Most pardons involve process though. Felons apply for a pardon, there's a small board to review applications, most are rejected -- that sort of thing. But the President can pardon anyone, at any time, for any Federal crime they have been charged with, before during or after trial (if convicted).
But seriously, say Trump (or whoever might have been in his place) actually wants to do this as a populistic move: is it hard to do? Does it require any bureaucratic bullshit, arguing with people, forcing stuff, or is it just some paper to sign and it's done? Does it require any effort (and how much) on his side to actually pardon Snowden?