No sooner had the ink dried on the judgment sentencing Paul Manafort on the second of his two federal criminal trials, then New York County District Attorney’s Office announced new state fraud charges against him. Their strategy is clear: New York State law enforcement authorities are trying to protect against a potential federal pardon of Mr. Manafort by President Trump. The President has no authority to pardon someone for a conviction under state law. 
 
However well-intentioned New York State prosecutors are in trying to ensure that Mr. Manafort serves an appropriate sentence for his numerous criminal acts, by bringing charges against him they may have violated the prohibition on double jeopardy. The Fifth Amendment provides that “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” Such successive prosecutions are colloquially called “double jeopardy.” 
 
Double jeopardy following conviction is treated with a transactional approach. The Supreme Court has held in Blockburger v. United States, 284 U.S. 299 (1932) that a person who is convicted of one set of charges cannot, in general, be tried on additional charges related to the crime unless the additional charges cover new facts against which the person in question has not yet been acquitted or convicted.  Essentially, one cannot be tried twice on the same set of facts or the same transaction unless new, as yet unproven, facts are added.
 
Some of the transactions in the state indictment, which alleges mortgage fraud, are transactions upon which Mr. Manafort was indicted and convicted in his federal cases.  Accordingly, Mr. Manafort has a very real double jeopardy challenge to at least some of the state criminal counts.
 
Notably, there is an important exception to the prohibition against double jeopardy. Under the “dual sovereign doctrine,” a defendant may be successively prosecuted by separate sovereigns, such as federal and state governments, for the exact same offense. The Supreme Court has held in Abbate v. United States, 359 U.S. 187 (1959), that a defendant whose conduct has violated the law of two separate sovereigns has committed two separate offenses, and may be prosecuted for both. Under the “dual sovereign doctrine,” Mr. Manafort may be convicted of the same acts in state and federal courts.
 
However, adding yet another complication, the “dual sovereign doctrine” does not apply in New York by virtue of a state statute that prohibits such successive prosecutions. There is currently an effort in the New York State Legislature to repeal that statute, but it is unclear if the repeal will pass, and whether it would apply retroactively such that Mr. Manafort could be prosecuted without the ability to resort to a double jeopardy defense. 
 
This is, to say the least, untrodden territory that is likely to be litigated extensively in the months ahead. We will continue to follow it and update this blog accordingly.