Supreme Court Urged to Change the Law on Double Jeopardy

This week the Supreme Court heard arguments in a closely-watched double jeopardy case, Gamble v. United States. The petitioner, Terance Gamble, is asking the Court to overturn the “separate sovereigns exception,” which holds it does not violate double jeopardy if a defendant is prosecuted by both a state and the federal government for the same crime.

Some fear the Court’s decision in Gamble could have implications for the Mueller investigation. There have been concerns that president Trump could dangle (or already has dangled) the possibility of a pardon in front of witnesses to persuade them not to testify against him. One safeguard against this is the possibility of state prosecutions. The president can’t pardon people for state crimes, so even if he pardoned witnesses against him those witnesses would still have to fear a potential state prosecution. But if the Court throws out the separate sovereigns exception, a state prosecution based on the same conduct might be barred by the double jeopardy clause,.  The conspiracy-minded have even suggested that Justice Kavanaugh was appointed based in part on the hope that he would vote to reject the separate sovereigns exception in Gamble and thus strengthen Trump’s hand.

Gamble is interesting because the issues don’t all break down along traditional liberal/conservative lines. For example, liberals and groups like the ACLU side with Gamble because they don’t believe a criminal defendant should be subject to successive prosecutions. But one area where the availability of dual prosecutions has been important is in enforcing civil rights laws; for example, allowing the federal government to step in and prosecute after a state prosecution that seems tainted by racial bias. If Gamble prevails, that might no longer be possible.

Similarly, a conservative who might be persuaded by arguments about the original intent of the framers — or who wanted to increase executive power by effectively giving the president the ability to pre-empt state prosecutions — would have to accept that ruling for Gamble will expand the rights of criminal defendants, limit states’ rights to enforce their own laws, and might even allow foreign countries to pre-empt prosecutions in the United States.

I was very curious to see how the Court would react to these issues, so I attended the oral argument on December 6. It’s going to be interesting to see how the Court comes down. It’s always hard to judge based on oral arguments, but I think most observers came away feeling like Gamble probably does not have the five votes he would need to win. But for a variety of reasons, even if the Court overturns the separate sovereigns rule, concerns about the potential impact on the Mueller investigation are probably overblown.

Supreme Court building on the day of the Gamble argument

The Facts of Gamble

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. The federal government decided to pursue the case as part of a program entitled “Operation Safe Neighborhoods,” which focuses on repeat dangerous offenders. Gamble had been involved in two prior cases that involved displaying and discharging a firearm.

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. In the federal case Gamble was sentenced to about four years, to run concurrently with his state sentence. As a result, he ended up facing about three years more jail time than he would have if the state case had been the only prosecution, but basically no more time than he would have if he had only been prosecuted in the federal case.

Protection against Double Jeopardy is in the Fifth Amendment

Double Jeopardy and Dual Sovereignty

The Fifth Amendment provides: “No person shall . . . be subject for the same offence (sic) to be twice put in jeopardy of life or limb.” The double jeopardy clause is based on an English common law rule that 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 only one shot at prosecuting you.

But for more than 150 years the Supreme Court has said it does not violate double jeopardy for both a state and the federal government to prosecute a defendant for crimes based on the same acts and consisting of the same elements. The rationale is that within our federalist system the federal and state governments are separate sovereigns, each with the right to enforce its own laws. State and federal crimes based on the same conduct thus are not considered to be the “same offence” and so are not barred by double jeopardy.

Gamble’s Arguments Before the Court

Gamble’s attorney Louis Chaiten relied heavily on history and the original understanding of the double jeopardy clause. He claimed there was a “mountain” of evidence indicating that at the time the Constitution was written it was understood that prosecution by one sovereign barred a subsequent prosecution by another.  He faced some skepticism from the Justices, particularly Justice Alito, who suggested the historical record was not so clear. Chief Justice Roberts also noted it struck him as odd that the framers, having just won their freedom from England, would adopt a clause that would mean a prosecution in England might bar their fledgling country from enforcing its own criminal laws.

Several Justices expressed concern about the international implications of Gamble’s argument. Although Gamble’s case involves a prosecution by the federal government and a state, if the separate sovereigns rule is discarded the double jeopardy could also bar the federal government from prosecuting conduct that has already been prosecuted in another country. Indeed, Gamble is arguing that was the eighteenth-century understanding of the ban on double jeopardy. Justice Alito posed a hypothetical where a group of American tourists are murdered in a foreign country. That country prosecutes the murderers but does a poor job and they are acquitted. Would the United States then be prohibited from asserting its interests in protecting its own citizens by prosecuting the murderers in the United States? Chaiten suggested a couple of possible limiting principles, including that the U.S. would have to recognize the foreign court as a court of competent jurisdiction. But several Justices appeared to remain troubled, including Justice Kavanaugh, who expressed concern about the potential impact on the national security interests of the United States.

The second major point of resistance Chaiten faced had to do with stare decisis, the general rule of respect for precedent. Justice Kagan was particularly focused on this point. She called stare decisis a doctrine of “judicial humility” that means “we are really uncomfortable throwing over 170-year-old rules that thirty justices have approved just because we think we can kind of do it better.” Justice Kavanaugh, interestingly enough, also chimed in, noting that stare decisis was also part of the original understanding of the framers. He said Gamble had to meet a very high bar by showing that the settled precedent was “grievously wrong” to justify overturning it.  Chaiten responded by claiming that the earlier cases did not really adequately address the issue or the historical arguments. He also argued that the factual and legal landscapes had changed due to subsequent decisions that applied the Fifth Amendment to the states (known as incorporation) and to the dramatic expansion of federal criminal law. Those changed circumstances, he claimed, provide a basis to overturn the prior decisions.

A third concern, voiced by Justice Breyer, dealt with the possible implications in areas like civil rights enforcement. He noted there were times when a successive prosecution could serve a critical government interest, such as cases where the federal government steps in to prosecute racially motivated crime that were not adequately addressed at the state level. Chaiten responded that he believed most federal civil rights law had sufficiently different elements that they would not be considered the same offense and so would not be barred.

The Government’s Response

Eric Feigin of the Solicitor General’s office argued for the government. He said Gamble had not provided the Court with a sufficient basis to discard a doctrine that has been firmly established for more than 150 years. Much of his argument focused on the difficulties he said would arise if the separate sovereigns rule is discarded. Picking up on Justice Breyer’s concerns, he noted the federal government might be barred from bringing civil rights cases in the wake of a biased or inadequate state prosecution. He also argued about the international implications, suggesting that the U.S. might be barred from prosecuting Columbian drug lords or international terrorists if they were already subject to prosecution in another country, even if that prosecution did not vindicate U.S. interests.

Feigin 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. State legislatures who disagreed with federal policy (on marijuana, for example) could pass laws that mimic the federal law and then try to bring their own prosecutions first in order to preclude federal ones. This could lead to a “race to the courthouse” and a breakdown in federal and state cooperation.

Feigin also argued that the problem presented by Gamble is relatively rare. The Department of Justice has an internal policy, called the Petite policy, which protects individuals from federal prosecution where a state has already prosecuted. The general presumption is against such prosecutions, and if federal prosecutors seek to bring one they must obtain approval from Main Justice and meet certain conditions demonstrating a substantial federal interest in pursuing the case. Feigin said only about a hundred such cases are approved each year. Chief Justice Roberts observed it might be considered  a bit odd for vindication of a constitutional right to depend on a discretionary DOJ policy, but Feigin described the Petite policy as a “success story.”

Kyle Hawkins, the solicitor general of Texas, was also allowed to argue briefly on behalf of a group of thirty-six states who filed an amicus brief urging the court not to discard the separate sovereigns rule. His argument focused on the interest states have in retaining their historic right to enforce their own laws regardless of what is done by the federal government. Hawkins argued the federal government should not be given the power effectively to override state policy by bringing federal prosecutions. He also noted states that are so inclined have the ability to deal with this issue through legislation, and that twenty states already provide some statutory protection against successive prosecutions.

Potential Implications of Gamble

Gamble has attracted an unusual amount of attention because of its potential implications for the Mueller investigation.  Consider the case of former Trump campaign manager Paul Manafort, who was convicted of multiple federal felonies in Virginia and then pleaded guilty to additional charges in the District of Columbia. Manafort was cooperating with the investigation, but that cooperation broke down when prosecutors accused him of repeatedly lying during interviews. He now faces at least ten years in prison, likely more. President Trump, meanwhile, has publicly expressed sympathy for Manafort and praised him for staying strong. Some suspect Manafort has refused to turn on Trump because he is counting on a pardon.

Having been convicted, Manafort has been placed in jeopardy on those federal charges. If Trump were to pardon him now, what would be the effect? He would definitely be in the clear on federal charges, and the federal government could not prosecute him again. But under the existing separate sovereigns rule, states like New York or Virginia where Manafort also may have committed crimes would remain free to prosecute him, subject to their own state law. Many are concerned that if the Court discards the separate sovereigns doctrine, the states would then be barred from prosecuting witnesses like Manafort. This would have the effect of allowing president Trump to pardon witnesses against him for state as well as federal offenses, and would strengthen his ability to grant witnesses their freedom in exchange for protecting him.

This is a popular narrative in the media, but I think the fears are overblown. There are so many different state and federal crimes now that it is not all that easy to establish that a state and federal violation are actually the same offense. Usually state or federal prosecutors will be able to find some crimes with different elements sufficient to make them distinct for double jeopardy purposes. Even if someone like Manafort were pardoned, it seems very likely that interested states would be able to find relevant state offenses that would not be barred. Professor Jed Shugerman has also suggested Mueller may be strategically refraining from filing certain charges, effectively reserving those types of charges for state prosecutors in the event Trump grants a pardon.

Even if the separate sovereigns rule were discarded, it may not change the legal landscape all that much. For example, New York state, where Manafort potentially could be prosecuted, is one of the states that already provides a form of double jeopardy protection by state law. That means the potential concerns about a state prosecution being barred are already present, at least in some states, regardless of what the Court does in Gamble. When you combine the various state protections with the DOJ Petite policy, you have an existing system that already makes dual prosecutions extremely rare.

Bottom line: the popular suggestion that the Gamble case is part of some stealth effort to allow Trump to thwart the Mueller investigation does not really hold water.

The really interesting secondary issue in Gamble has to do with stare decisis. Gamble is asking the Supreme Court to overrule constitutional holdings that date back to the 19th century. As noted above, several Justices (including, interestingly, both Justices Kavanaugh and Gorsuch) questioned Gamble’s lawyer about when the Court should be willing to disregard established precedent, even if the current Court thinks it might be wrong.

A central issue in recent Supreme Court confirmation hearings has been the role of precedent and stare decisis. Many are particularly concerned about the doctrine when it comes to Roe v. Wade, which of course has been long-targeted by conservative groups. Justices who might be inclined to rule in Gamble’s favor, such as Justice Ginsburg, have to be mindful of how they justify discarding more than a century of “settled law,” lest that analysis come back to bite them in some future case. Justice Kagan’s extensive questioning on stare decisis seemed to be laying down a marker; with the changing composition of the Court she undoubtedly has her mind on future cases as well.

I’ll be very interested to see the Court’s discussion of stare decisis when Gamble is decided. It isn’t necessarily a liberal or conservative issue. As Justice Breyer pointed out during the argument, you can’t believe precedent should never be discarded, or else you would never have cases like Brown v. Board of Education. Liberals have to acknowledge that if stare decisis were always followed you wouldn’t have decisions like Lawrence v. Texas, which declared anti-sodomy laws unconstitutional and overturned Bowers v. Hardwick that had been decided only seventeen years earlier. Simply stating that a case like Roe is “settled law” does not answer the question: under what circumstances is it appropriate for the Court to revisit settled law?

Given the scope of criminal law today at both the state and federal level, I think relatively few prosecutions would end up being completely barred even if Gamble wins. But what the Court says about the role of stare decisis could have significant implications for future issues likely to come before the Court.

Update: On June 17, 2019, the Supreme Court rejected Gamble’s arguments and upheld the dual sovereignty doctrine. The 7-2 opinion was written by Justice Alito, and Justice Kavanaugh joined the majority. Justice Thomas wrote a concurrence in which he questioned the Court’s general adherence to stare decisis. Justices Ginsburg and Gorsuch filed dissents. You can find the opinion here.

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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.

Protection against Double Jeopardy is in the Fifth Amendment

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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