Last month I wrote about Minnesota Attorney General Keith Ellison’s nonfeasance and lying in the Feeding Our Future case in connection with the last congressional circus featuring Ellison. I called the circus “Another wasted opportunity.” The thought continues to apply.
In “Keith Ellison exposed,” Bill Glahn writes about Ellison’s civil cases resulting in the dissolution of a few of the nonprofits that featured prominently in the Feeding Our Future scandal. Bill wonders speculatively if these nonprofits could use their “settlements” with Ellison as a shield against future state or federal prosecutions by rais[ing] something akin to a double-jeopardy argument[.]”
I don’t know what something akin to a double-jeopardy argument might be, but I think the answer to this question is negative. Ellison himself asserted in the exchange Bill cited that the bad actors behind the nonprofits “still may be” prosecuted — not that they will be, but they legally could be. I think Ellison was right. I want to explain why.
Let’s take the case of Youth Leadership Academy d/b/a Gar Gaar. It’s one of the two that Bill specifically mentions. The resolution of the civil case brought by Ellison required the dissolution of the nonprofit. The case was resolved by the settlement reflected in this Assurance of Discontinuance document executed by the Attorney General and Gar Gaar president Khadija Ali.
Paragraph 21 of the Assurance of Discontinuance settlement document provides that the Attorney General’s Office “through this Assurance does not settle, release, or resolve any claim against any individual, entity, or person other than Gar Gaar, including against any current or former board members, officers, employees, or other agents of Gar Gaar not a party to this Assurance.” In other words, Gar Gaar is going away, but claims against everyone involved remain.
Only claims of the Attorney General’s Office “under Minnesota Statutes chapters 317A [nonprofits], 501B [charitable trusts], and 309 [social and charitable organizations]” were released under the settlement. The Minnesota Criminal Code appears in chapter 609 of the Minnesota statutes. It isn’t included in that list. State criminal claims survive the dissolution of Gar Gaar. They are not released.
The Double Jeopardy Clause of the Fifth Amendment protects individuals and corporate entities against being prosecuted twice for the same crime. However, neither Gar Gaar nor its principals have faced criminal jeopardy. The double jeopardy clause hasn’t been triggered.
Moreover, under long-standing Supreme Court doctrine, federal charges could be brought even if Gar Gaar’s principals had faced jeopardy in state court. The Supreme Court addressed this issue, most recently, in Gamble v. United States, 587 U.S. 678 (2019). The Court held that defendants could be convicted for the same crime under both state and federal law. That holding would apply even if Gar Gaar’s dissolution constituted criminal jeopardy (which it doesn’t).
