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The Supreme Court’s Double-Jeopardy Dilemma

Does it help or harm justice when state and federal governments can separately prosecute a defendant for the same crime?

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The Supreme Court appeared hesitant on Thursday to overturn almost two centuries of precedents that allow state and federal prosecutors to each charge a defendant for the same crime. In Gamble v. United States, one of the most closely watched cases of the term, the justices debated whether they and their predecessors have misread the Fifth Amendment’s double jeopardy clause for roughly 170 years—and, if so, whether they should correct that error now.

The clause forbids the government from prosecuting someone more than once for the same crime. There’s an exception, however, known as the separate-sovereigns doctrine, that allows multiple prosecutions if the defendant is charged by different legal sovereigns. A state can’t prosecute someone for the same offense twice. The federal government also can’t prosecute someone for the same offense twice. But a state and the federal government could each prosecute someone once for the same underlying conduct.

Justices Clarence Thomas and Ruth Bader Ginsburg have raised concerns about this doctrine in past decisions, so it’s no surprise that Thursday’s oral arguments scrambled the court’s usual ideological divisions. Ginsburg and Justice Neil Gorsuch took a more sympathetic view toward the defendants’ arguments against the doctrine, while Justices Samuel Alito, Brett Kavanaugh, and Elena Kagan appeared skeptical that the court should overturn a legal doctrine so thoroughly entrenched in American criminal law.

The justices are generally reluctant to overturn the court’s previous rulings unless absolutely necessary, a legal doctrine known as stare decisis. “The bar that you have to clear, I believe, is not just to show that it’s wrong but to show that it’s grievously wrong, egregiously wrong, something meaning a very high bar, because stare decisis is itself a constitutional principle,” Kavanaugh asked Louis Chaiten, who argued for the defendant. “Can you clear that bar?”

The defendant, Terrence Gamble, was pulled over by Alabama police for a broken taillight in 2015. After officers found marijuana and a handgun while searching his car, local prosecutors charged him with possession of drugs and possession of a handgun despite a previous felony conviction. Gamble pleaded guilty to both charges. Shortly thereafter, federal prosecutors charged him with violating a federal law that prohibits people with felony convictions from owning a firearm.

Gamble argues that he is essentially being prosecuted twice for the same crime, and asked lower courts to quash the federal charges. They uniformly declined, citing the Supreme Court’s lengthy history of rulings in favor of the doctrine. Gamble contends that those rulings are based in a wrongful reading of the double jeopardy clause, which flatly forbids multiple prosecutions “for the same offense.” He also argues that the court’s current interpretation deviates from historical English and American practices at the founding. “The separate-sovereigns exception originated in ill-considered dicta and solidified through a series of decisions that ignored prior precedents and never meaningfully engaged with the text or original meaning of the Double Jeopardy Clause,” he wrote in his brief for the court.

The federal government strongly disagrees. In its court filings, the Justice Department cautioned the justices against changing a basic assumption upon which the nation’s criminal justice system is built. “For nearly 170 years, repeatedly and without exception, this Court has relied on the plain meaning of ‘offence’ and principles of federalism to recognize that state and federal offenses are not the ‘same,’” the government said in its brief for the court. “And both before and after incorporating the Double Jeopardy Clause against the States, the Court has rejected invitations—which raised arguments nearly identical to petitioner’s—to redefine the Clause.”

State attorneys general from 36 states—ranging from California and New York to Florida and Texas—also sounded the alarm. The states warned that overturning the doctrine would threaten the nation’s federal structure, the states’ fundamental sovereignty, and the interests of justice, especially by weakening federal civil rights laws. They pointed to the Rodney King beating in the early 1990s, where federal prosecutors charged the four Los Angeles police officers with civil rights violations after a local jury controversially acquitted them in a state trial.

Overturning the doctrine could also complicate prosecutions for crimes committed on tribal lands. Tribal governments enjoy the sovereign power to prosecute crimes committed within their borders. That power is limited, however, by Supreme Court precedents and by federal laws that give the Justice Department jurisdiction when major crimes are committed or non-Native American perpetrators are involved. The result is a thicket of laws, precedents, and practices that determine when a federal or tribal government will bring charges.

In a friend-of-the-court brief, the National Indigenous Women’s Resource Center and the National Congress of American Indians warned the court that abandoning the doctrine could have dire implications for criminal cases on tribal lands, especially as they wrestle with an epidemic of domestic violence and sexual assaults. If a tribal government brings charges, the defendant may ultimately receive a much more lenient sentence than they would under federal law, they told the court. “And if a tribal nation elects to forego prosecution, in the hopes that the U.S. Attorney will conclude his or her investigation and bring federal charges, the victim may face a situation where no charges are brought at all—as federal prosecution is never guaranteed.”

The justices spent most of Thursday’s oral arguments diving into the pre-twentieth century precedents on double jeopardy. But many of the justices’ questions also focused on how scrapping the doctrine would play out in real-world terms. “How does it work as a practical matter?” Roberts asked Chaiten. “Is it a race to the courthouse? I mean, if a prosecution bars a subsequent one, the state and federal government may have different perspectives, is it whoever can empanel a jury first is going to block the others?”

“So, first of all, the norm in the country is cooperation between federal and state authorities,” Chaiten replied. “Well, it sure wasn’t entirely true at the time of the civil rights actions in the ’60s and ’70s,” the chief justice noted. “It wasn’t true at the time of the fugitive slave law.” The government picked upon this point during its turn before the justices. “You could imagine state prosecutors in California, as a protest against federal marijuana laws, allowing anyone who’s caught with 50 kilograms of marijuana to walk in and plead to a misdemeanor to frustrate federal prosecutions,” Eric Feigin, who argued for the federal government, offered as a hypothetical.

Gorsuch, who appeared to favor Gamble’s arguments, pointed out that the practical concerns cut both ways. He noted that the “proliferation of federal law,” with “over 4,000 statutes now and several hundred thousand regulations,” could give the federal government the opportunity to retry far more state-level cases than when the doctrine was first contemplated. “Why shouldn’t that be a practical concern we ought to be more concerned about today?” he asked Feigin.

Most of the attention surrounding Gamble v. United States stems from another case: Special counsel Robert Mueller’s wide-ranging inquiry into Russian interference during the 2016 presidential election. Some legal experts have warned that jettisoning the separate-sovereigns doctrine could endanger Mueller’s ability to pressure witnesses to cooperate and make it easier for President Donald Trump to shut down the inquiry.

This fear isn’t completely unfounded. As Mueller’s investigation has drawn closer to the White House, Trump has ratcheted up his efforts to interfere in the inquiry. The president could theoretically fire Mueller, shut down the investigation, and issue pardons to anyone under the special counsel’s scrutiny. That last part is especially worrisome. Presidential pardons are definitive and irrevocable: They can’t be overturned by future presidents or by Congress, and the Supreme Court has long held that presidents have broad discretion in their usage.

Two limits exist on the president’s pardoning power under current law and precedents. It can’t be used to evade impeachment by Congress, and it only applies to federal criminal offenses, not state ones. That last provision amounts to something of a backstop for the Russia investigation if Trump makes a Nixonian push to shutter the Justice Department’s inquiry. Even if Trump pardons everyone involved, New York and Virginia could theoretically prosecute key witnesses instead. Mueller has stayed characteristically silent on whether this is part of his strategy, and state attorneys general have declined to comment publicly on the matter.

Not every legal expert sees Gamble as a potential threat to the Russia investigation. Fordham University law professor Jed Shugerman and appellate lawyer Teri Kanefield wrote in October that Mueller could structure the charges so that he didn’t prosecute anything that the state attorneys general could not. In the case of Paul Manafort, the jury’s failure to reach a verdict on ten charges during his trial in Virginia last August may have made this easier. “Those deadlocked charges left a mistrial that could theoretically be retried on the federal or state level without a double jeopardy problem, with or without Gamble,” they wrote. “When Manafort pleaded guilty [in September], Mueller seemed to leave the door open on many charges by state prosecutors.”

The justices and the lawyers arguing the case made no mention of Mueller, presidential pardons, or anything suggesting that the Russia investigation was foremost on their minds. Whether a decision in Gamble’s favor would affect it is one of many questions that can’t be fully answered. “The states and the federal government have never had to be concerned about who goes first,” Hawkins told the justices. “Under the law of unintended consequences, surely there are practical problems that would arise from [the defendant’s] position that we may not have even thought about today.” A decision is expected by June.