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Europe Agonistes

Federalism and the Future of Europe

Europe Gets A Lesson in American Civics

Mike Ungersma thinks Europe’s fascination with President Trump’s

Supreme Court nominee may miss the real point of the controversy.

When 53-year-old Brett Kavanaugh was sworn in as the America’s 114th Supreme Court justice, the bitter campaign by President Donald Trump and his fellow Republicans in the US Senate was over, and the conservative direction of the nine-member body will be maintained.  Or, at least that’s the assumption.

Certainly Justice’s Kavanaugh’s record as a Federal judge would seem to reassure Republicans who see the present Court’s make-up as a guarantee their conservative policies and laws will remain intact and even be extended.  Along with the President’s first Supreme Court appointee – Justice Neil Gorsuch – this second successful nomination strengthens the political right’s hold on the the Court, and by extension, the country.

For the President, moreover, getting Kavanaugh through to maintain the Court’s current political complexion could be crucial to his own fate as the 45th occupant of the White House.  For wending its way through the American judicial system are two cases the Supreme Court will decide, and in so doing, may determine the future of the President himself.

The first, the President says is no real bother: “I have the absolute right to PARDON myself,” he tweeted on June 4th this year, igniting a firestorm of argument among constitutional scholars and commentators. Most think he is on shaky ground.  The view of the century-old Washington think-tank, the Brookings Institute, is typical.

Ever since the Constitution was written, it’s been recognized that the president’s power of pardon is broad, but not so broad as to allow him to pardon himself. This idea stems from a legal principal established over three centuries ago in Anglo-American law. That rule is that no person may be a judge in his or her own case.

Norman Eisen, a Senior Fellow in Governance at Brookings, says “The last time this issue was floated was right before the resignation of President Richard Nixon. The Department of Justice wrote that a president may not pardon himself. This DOJ opinion is not binding in the courts. But the reasoning of the opinion—centring on this principal that no person may be a judge in his or her own case—is compelling.”

A legal test of that reasoning could be triggered in any number of ways.

The President, as a millionaire property developer before his election, may have set some kind of record for suing and being sued.  USA Today, in an article published two years ago, estimated that Trump enterprises have been involved in 3,500 legal cases at both the state and federal level.  Litigation, the magazine concluded, could almost be seen as a central business strategy of Trump enterprises.  However, these are civil cases, and not subject to presidential pardon.  But since becoming President, the list of potential criminal charges has been growing, mostly involving his staff, appointees – and above all – his family.  Charges arising from the probe by Special Counsel Robert Mueller into Russian involvement in the election is, of course, foremost.  And while impeachment is a the ultimate political penalty Congress could invoke and is not subject to a pardon, what Mueller may come up with might be a different matter altogether.  It is in these instances that the issue of the extent of the powers of the Presidential pardon could become central.  And, they almost certainly would reach the Supreme Court.

When Justice Kavanaugh slides behind his desk in the ornate Supreme Court building he will find a file labelled – Gamble vs the United States, a case testing the notion of ‘dual sovereignty’, a concept that goes to the very heart of the American federal system of individual states and the central government.  It got to the Supreme Court like all other such matters reach it; through countless appeals and referrals of lower courts.  And it is – like almost all such cases that get this far – fundamentally important.

Since it was written by America’s Founding Fathers, the Fifth Amendment to the Constitution has meant that no one is required to incriminate themselves – the famous “I’ll take the ‘Fifth’ plea.”  But the same amendment goes further, noting “. . . nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”  This is the judicial concept of ‘double jeopardy’, the idea that it is inherently unfair to try someone twice for the same offence.

So why might it be a matter for Justice Kavanaugh and his colleagues, and what does is have to do with President Trump?

Because the U.S. is a federal republic, the individual states vigorously fight for the retention of their rights.  From the founding on, states argued that all powers not specifically granted to the central government remain theirs, including the right to try an individual who has already been tried in the Federal, that is to say, national, court system.  This is what will soon be tested in Gamble vs the United States.  This exception to double jeopardy is known as the ‘doctrine of dual-sovereignty’, that is, the fifty states and the Federal government are equally autonomous in this particular circumstance.  It is also a concept that has has relevance for the 28 countries of the European Union given that it is an emerging federal system – but that’s another story.

As Atlantic journalist Natasha Bertrand, noted in a recent issue of the magazine:

Under settled law, if Trump were to pardon his former campaign chairman Paul Manafort, for example—he was convicted last month in federal court on eight counts of tax and bank fraud—both New York and Virginia state prosecutors could still charge him for any crimes that violated their respective laws.

Crucially, if the Court decides to end dual sovereignty, then a pardon by the President would lift the threat of state-level action against Manafort.  And that would over-turn two centuries of the doctrine, a major shift indeed.

Can the President and his fellow Republicans rely on Kavanaugh and Gorsuch to carry the day?   Supreme Court justices can sometimes behave in very unpredictable ways.  They are, after all, there for life, and are about as insulated from partisan politics as it is humanly possible to be.  The assumption they will remain politically loyal is not necessarily a guide.

Decades ago, President Eisenhower thought he was undergirding the conservative bent of the 1950s court with the appointment of his friend, the former California Governor Earl Warren, as presiding judge, the Chief Justice.  It was Warren after all, who swung the vote Ike’s way in his first Presidential run in 1952.  But Warren defied all expectations, and through his persuasive leadership, took the Court and the nation in an almost revolutionary new direction.  It was the Warren court, which ended nearly a century of segregated school education in its landmark Brown v the Board of  Education case, when it declared that black children were victims of an inherently unequal system.  That marked the beginning the civil rights movement.    Warren and his colleagues also gave those accused of a crime the right to a publicly-provided attorney in the famous Miranda ruling, another judicial upheaval.  And there would be more, much more in Warren’s 16 years on the bench.

Years later, asked what had been the biggest mistake in his eight years in the White House, Eisenhower replied it was appointing that “dumb son of a bitch Earl Warren.”

There are no guarantees in the parlous game of Supreme Court appointments.  Watch how Justice Kavanaugh votes in the momentous cases the Court will rule on in future.  The occupant of 1600 Pennsylvania Avenue may be in for a shock.

Justice Kavanaugh – like the more than one hundred justices who have preceded him – may find the desire to live for history, not politics, compelling.

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