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Strange as it may sound, people can be charged for the same conduct on both the state and federal levels.
I was reminded of this odd legal fact upon the news of state charges against the "false electors" in Michigan for alleged 2020 election crimes.
The state charges followed a federal referral, my colleague Steve Benen noted, but Michigan Attorney General Dana Nessel's office was apparently "no longer prepared to wait to see what federal prosecutors decide to do."
In this case or any case, bringing state charges wouldn't preclude federal charges, or vice versa.
The Fifth Amendment's double jeopardy clause protects against being put in legal jeopardy twice for the "same offence." But that doesn’t stop prosecutions from proceeding in what are technically separate state and federal forums.
Indeed, the Supreme Court has recently reaffirmed the “separate sovereigns” or “dual sovereignty” doctrine allowing such multiple prosecutions.
“Under this ‘dual-sovereignty’ doctrine, a State may prosecute a defendant under state law even if the Federal Government has prosecuted him for the same conduct under a federal statute,” Justice Samuel Alito wrote for a 7-2 majority in 2019 (with an odd couple of Ruth Bader Ginsburg and Neil Gorsuch dissenting).
“Or the reverse may happen,” Alito wrote in his opinion for the court declining to overturn the doctrine.
So while we don’t know what federal charges may be in store for fake electors around the country, with state probes (like in Georgia) swirling, it’s worth keeping in mind that charges on one level don’t preclude charges on another.