Supreme Court to Hear Double Jeopardy Case with Implications for Mueller

Blockbuster decisions about the president’s travel ban and public sector unions dominated the news during the final week of the Supreme Court’s term. Less noticed was the Court’s surprising announcement that next term it will hear an important double jeopardy case, Gamble v. United States. The Court’s decision in Gamble could have implications for the Mueller investigation and the president's ability to undermine it by pardoning witnesses against him. How the Court  -- which by then may include a new Justice Kavanaugh -- resolves the case also could provide new clues about its willingness to overturn firmly-established constitutional precedents. The petitioner, Terance Gamble, was convicted of robbery in Alabama in 2008. That felony conviction made it illegal for him to possess a firearm under both Alabama and federal law. In November 2015 police in Mobile pulled Gamble over for a broken taillight and smelled marijuana. When they searched his car they found marijuana, a scale, and a 9 mm handgun. Alabama prosecuted Gamble for the state crime of being a felon in possession of a firearm. He was convicted and served a one year sentence. While the state case was pending, federal prosecutors charged him with the federal version of the same offense, based on the same incident. Gamble pleaded guilty to the federal charge but preserved his right to appeal and argue that this second conviction violated the double jeopardy clause of the Fifth Amendment. The federal case resulted in Gamble being sentenced to an additional three years in prison.

Double Jeopardy and Dual Sovereignty

The protection against double jeopardy is one of the English common law doctrines that the framers of our Constitution included in the Bill of Rights. The Fifth Amendment provides: “No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.” The government is not allowed to prosecute you repeatedly for the same conduct until it gets the result that it wants. Once jeopardy attaches – typically when you plead guilty or a jury is sworn in – the government generally gets one shot at the prosecution. But the clause is subject to a “dual sovereignty exception.” For more than 150 years the Supreme Court has said it does not violate double jeopardy for a state and the federal government to prosecute a defendant for crimes based on the same act and consisting of the same elements. The rationale is that within our federalist system the federal and state governments are two different sovereigns, each with the right to enforce its own laws. State and federal crimes based on the same conduct thus have not been considered to be the same “offence” for purposes of double jeopardy.

Gamble’s Arguments

In urging the Court to take his case, Gamble argued the dual sovereignty exception is inconsistent with the history and purpose of the Fifth Amendment and should be discarded. He first relied on history and original intent, claiming the exception did not exist at common law and that a conviction or acquittal in another country was commonly understood to bar a prosecution in England based on the same misconduct. Gamble also noted that the Supreme Court first adopted the dual sovereignty exception back when the Fifth Amendment was considered not to apply to the states. That’s no longer the case – the double jeopardy clause is now one of the protections in the Bill of Rights that the Court has incorporated to the states through the Fourteenth Amendment. Gamble argued this makes the older holdings suspect and ripe for reexamination. Now that double jeopardy clearly applies to the states as well, he argued, it’s improper to allow the state and federal government to do together what each could not do on its own. Gamble also claimed the dual sovereignty exception undermines the purpose of the double jeopardy clause. The clause is supposed to promote finality. It protects an individual from repeated exposure to the stress, humiliation, and expense that accompany a prosecution. These injuries from a repeated prosecution, Gamble urged, are the same whether those prosecutions are from the same sovereign or two different ones. Finally, Gamble argued the exception needs to be overturned due to the dramatic growth of federal criminal law. When the exception was first adopted the federal criminal code was much less extensive. It would have been relatively rare for the same conduct to be prosecutable by both federal and state authorities. But with the dramatic expansion of the federal criminal code in the past few decades, in the hands of a creative prosecutor most state crimes may now be prosecuted federally as well. As a result, the risk of the harm resulting from a dual prosecution are far greater. These changed circumstances, Gamble argued, require a new legal standard.

The Government’s Response

In urging the Court not to take the case, the government argued there is no reason to reconsider a doctrine that has been firmly established for more than 150 years. It claimed the dual sovereignty exception is part of the unique American system, where the federal and state governments each preserve their own sovereign spheres of influence. It argued that English common law precedents involving prosecutions in other countries have no relevance to our federal system, where both federal and state governments have territorial jurisdiction over crimes occurring within their respective borders. The application of the double jeopardy clause to the states is irrelevant, according to the government. Even before application to the states, if Gamble were correct the clause still would have prevented federal prosecution for a crime already prosecuted by a state – but the Supreme Court has  rejected that argument for more than 150 years. Application of double jeopardy to the states, the government said, simply means a state cannot itself prosecute someone twice for the same crime. It has no effect on whether the state and federal governments may proceed separately to prosecute the same misconduct. The government also argued that abandoning the exception could lead to state and federal governments interfering with each other’s law enforcement efforts. A state prosecutor could thwart federal law enforcement priorities by bringing a case for the same conduct and thereby foreclosing a federal prosecution -- and vice-versa. This could lead to a “race to the courthouse” with federal and state prosecutors competing to get their charges filed first. Such a system would be inconsistent with the respect that state and federal governments owe each other under our federal system. (In his reply brief, Gamble has a nice response to this point: “The purpose of the Double Jeopardy Clause, like the purpose of the Free Speech Clause or Free Exercise Clause, is not to protect the State and federal governments from each other but, rather, to secure the rights of the individual by circumscribing the powers of both.”) As for the expansion of federal criminal law, the government argued this makes the exception more important, not less. That expansion means there are more potential opportunities for federal law enforcement potentially to encroach on the states. Federalism demands that the states be allowed to preserve their own sphere of influence and law enforcement priorities when it comes to crimes committed within their borders. The bottom line argument for the government was that there is no good reason to disturb such a well-settled constitutional doctrine. Dual prosecutions are relatively rare, and judges always have the ability to take such factors into account when fashioning an appropriate sentence.

Why Did the Court Take the Case?

Gamble presents a fascinating mix of issues and implications. It’s not at all clear why the Court took the case. There was no split in the lower courts or other compelling reason to re-examine such a settled doctrine. That the Court agreed to hear the case anyway is probably a sign it's inclined to rule in Gamble's favor. On the other hand, the Court re-scheduled consideration of the case in conference a remarkable eleven times before finally deciding to grant the petition on the final day of the term. That suggests at least some members of the Court were really wrestling with the decision. The Court’s action is even more surprising considering  it just reaffirmed the dual sovereignty doctrine two years ago in a case called Puerto Rico v. Sanchez Valle. In an opinion by Justice Kagan, the Court held that Puerto Rico and the United States are not separate sovereigns for purposes of double jeopardy and thus the defendant could not be prosecuted by both. But the majority opinion did not question the validity of the dual sovereignty exception and took it as settled law. Justice Ginsburg, joined by Justice Thomas, wrote a concurrence in Sanchez Valle criticizing the dual sovereignty exception and suggesting it should be revisited in an appropriate case. Gamble relied heavily on that concurrence when urging the Court to grant his petition. Since Sanchez Valle was decided Justice Gorsuch also has joined the Court, and perhaps he was a third vote to take the case. But it takes four Justices to grant certiorari and it’s not clear where the fourth vote came from – or whether there will be five votes to actually overturn the dual sovereignty exception. Arguments about the understanding of the clause in common law England may appeal to originalists like Justice Gorsuch. But conservative Justices also may be concerned about federalism and whether a federal prosecution can effectively trump a state’s own law enforcement efforts. On the other hand, arguments about the purpose of the clause and protecting defendants from repeated harassment may resonate with Justices on the Court’s more liberal wing, as suggested by Justice Ginsburg's concurrence in Sanchez Valle. The case could lead to some very interesting voting alignments.

Paul Manafort

Potential Implications of Gamble

Gamble has potential implications for prosecutions that could be brought by special counsel Robert Mueller. An issue looming over the Mueller investigation has been whether president Trump might pardon members of his own family or potential witnesses against him -- or even himself. One safeguard against that has been the availability of state prosecutions. The president cannot grant pardons for state crimes. That leaves open the possibility that even if Trump pardoned people such as Paul Manafort, New York state prosecutors might be able to pursue financial crimes that violated New York law. Reports that Mueller has been cooperating with the New York Attorney General’s office have noted that state prosecutions could be used as leverage to induce cooperation in Mueller’s inquiry even if Trump pardoned witnesses for federal crimes. If the dual sovereignty exception is discarded, however, this safety net could be trimmed. For example, if Paul Manafort were convicted of financial crimes by federal prosecutors and then Trump pardoned him, New York state prosecutors may no longer be able to prosecute Manafort for the state crimes covering the same misconduct. This highlights an interesting side effect of abandoning the dual sovereignty doctrine: it would mean the president could, in some cases, effectively grant pardons for state crimes by pardoning a federal defendant who had already been placed in jeopardy for the federal version of those same crimes. This would represent a dramatic expansion of the pardon power and of presidential ability to interfere with state law enforcement. Another interesting aspect of Gamble that will deserve attention is the role of stare decisis. The upcoming confirmation hearings for Trump’s Supreme Court nominee Brett Kavanaugh will undoubtedly focus on the doctrine of stare decisis and how it applies to landmark cases such as Roe v. Wade. The same week that it agreed to hear Gamble, the Court overruled a forty-one year precedent involving public unions when it decided the Janus case. Gamble is asking the Supreme Court to overrule constitutional holdings that have been on the books for decades. Gamble will present the Court with another opportunity to discuss stare decisis and when it is appropriate to overturn settled Supreme Court precedents. That discussion will be closely watched, particularly if a new Justice Kavanaugh is on the Court. Practically speaking, even if the dual sovereignty doctrine is overturned the effect may be relatively limited. In many situations state and federal crimes do not entirely overlap and both state and federal prosecutions for the same general conduct will still be possible. And my experience is that cases involving dual prosecutions are pretty rare. Prosecutors are busy; if justice is being pursued by their counterparts they are usually happy to turn their attention to other cases and not duplicate those efforts. Some states, including New York, already provide a broader double jeopardy protection by statute. Professor Jed Shugerman has noted this could have implications for New York state prosecutions of people like Paul Manafort and Michael Cohen if they are prosecuted by Mueller and then pardoned by President Trump. That remains true whether or not Gamble overturns the dual sovereignty exception - unless New York amends its law, as Shugerman has urged. Professor Shugerman has also suggested Mueller may be strategically refraining from filing certain charges, effectively reserving those charges for the state prosecutors in the event Trump grants a pardon. That sort of tactic could become even more important based on the Court’s decision in Gamble. But of course the Mueller investigation is not the norm. The unprecedented issues and concerns surrounding the Mueller investigation do not affect routine law enforcement. Most prosecutors, most of the time, do not have to worry about the president potentially obstructing their investigations by granting pardons. Gamble thus looms potentially larger in the Mueller investigation that it does for law enforcement generally. Gamble should be argued late this year or early in 2019. The Court’s decision to hear Gamble seems like a sign that the dual sovereignty exception’s days may be numbered. But the decision, and how the Court reaches it, could end up having implications that extend far beyond the facts of Gamble’s own case.

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