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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The Kavanaugh Nomination and the “Bribery” of Susan Collins

A crowdfunding campaign in Maine is seeking to pressure U.S. Senator Susan Collins to oppose the nomination of Brett Kavanaugh to the Supreme Court. Collins, a moderate pro-choice Republican, is considered one of the few Republican Senators who might oppose the president’s nominee. Two progressive groups have raised about $1.4 million from nearly 50,000 individual donors, promising to donate the money to Collins’s (as yet unknown) 2020 Democratic opponent if Collins votes to confirm Kavanaugh. If she votes against the confirmation, the groups say they will return the money to the donors.

Collins says the campaign is illegal. She claims two attorneys have told her it constitutes bribery and one told her it is extortion. Other Republicans also have expressed outrage. The Wall Street Journal weighed in with an editorial headlined, “You Can’t Bribe Susan Collins.” A watchdog group referred the matter to the Department of Justice and asked for a criminal investigation, claiming that it’s “pretty clear . . . that this is absolutely an act of bribery and corruption.”

Actually, the opposite is pretty clear: the crowdfunding effort is neither bribery nor extortion. That doesn’t mean it’s laudable, and to many the effort does seem a bit shady somehow. But like it or not, it’s simply a slightly more explicit example of what goes on every day in our politics. What the spat really highlights is the thin and often blurry line between political corruption and our current campaign finance system.

Senator Susan Collins of Maine

Senator Susan Collins (R – Maine)

It’s Not Bribery

The relevant section of the federal bribery statute, 18 U.S.C. 201(b)(1)(A), prohibits corruptly giving or offering a “thing of value” to a public official to influence that official in the performance of an official act. As a United States Senator, Collins is a public official as defined in the statute. And although the Supreme Court in the recent Bob McDonnell case dramatically limited the scope of the term “official act,” there’s no question that voting on a Supreme Court nominee would qualify. There’s also no question that the crowdfunding effort is an attempt to influence Collins in her performance of that official act.

So far, so good, right? But the first hitch in the bribery theory is that it appears nothing is being given or offered to Collins at all. The $1.4 million is certainly a “thing of value,” but it’s being promised to some future, unknown opponent of Collins, not to Collins herself.

However, the term “thing of value” has been interpreted very broadly. It includes intangibles such as promises of future contracts, job offers, and even the companionship of a significant other. I think you could make a decent argument that the promise to withhold $1.4 million from a future opponent is a “thing of value” to Collins for purposes of the federal bribery statute. It might be a bit of a stretch, particularly since her opponent is not even known yet (and I’m not sure we know for certain that she intends to run for re-election). But it doesn’t seem crazy to me. The “thing of value” in a bribery case should be something that might influence the official to act a certain way. The promise to give to — or withhold from — her future opponent’s campaign a substantial sum of money seems like it would have the ability to influence Collins’s actions. Indeed, that’s precisely the point.

The real problem with the bribery theory is the requirement of “corrupt” intent. Proving a defendant acted corruptly – knowingly and with a bad purpose to do something improper – is easier when bribes consists of secret gifts or briefcases full of cash. But campaign contributions carry almost a presumption of legitimacy. They are publicly disclosed and legal (as long as they are within proper limits). They’re also considered an essential component of the right of citizens to express their views and support candidates of their choice.

It’s not impossible to base a corruption case on a campaign contribution, but the bar is very high. It’s not enough simply to show that the politician acted in a way desired by someone who made a large donation. Prosecutors must demonstrate an explicit agreement that the candidate will act a certain way in exchange for the contribution. Corrupt intent typically is highlighted by the fact that such deals are struck in secret – and such evidence is very hard to come by.

For example, in the recent trial of New Jersey Senator Bob Menendez, after the jury deadlocked the judge dismissed all the bribery counts where the thing of value alleged was a political contribution. The judge found that prosecutors had failed to prove the required explicit link between those contributions and any actions by Menendez. The judge did not dismiss the bribery counts involving other things of value, such as undisclosed gifts of vacations and private jet trips. But he ruled that the bribery charges based on political donations – and linked to the same alleged official acts by Menendez – had to be dismissed for lack of evidence. (After the case was gutted by the dismissal of those counts, prosecutors decided to drop the remaining counts and not re-try Menendez.)

In the Collins case, the pledged contributions are within legal limit and have been publicly disclosed. There is certainly no secret deal with Collins to influence her – just the opposite. And there could be no agreement with her opponent, who isn’t even named yet.

The Supreme Court’s decision in Citizens United made it clear that even if huge amounts of money are sloshing around within the political system seeking to influence candidates and elections, that alone does not demonstrate corruption. The crowdfunding effort is indeed intended to influence Collins, but that’s not enough. Lobbyists and donors seek to influence politicians all the time. Bribery requires not just an intent to influence but a corrupt intent. I don’t see how that could be shown here.

It’s Not Extortion, Either

Collins has also suggested the crowdfunding effort might amount to extortion. The primary federal extortion statute, the Hobbs Act, 18 U.S.C. 1951,  prohibits extortion by force, violence or fear, or under color of official right (a popular public corruption theory). Extortion by fear includes using fear of economic harm, such as threatening to ruin someone’s business. One could argue that the threat to donate to Collins’s opponent amounts to using fear of economic or professional harm to influence her actions.

But extortion requires that the defendant obtain property from the victim. The Hobbs Act defines extortion as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 18 U.S.C. 1951(b)(2). The Supreme Court made clear in Scheidler v. National Organization of Women that this statute requires both that the victim was deprived of actual property (not the broader “thing of value” used in the bribery statute) and that the defendant obtained that property. In a more recent case, Sekhar v. United Statesthe Court noted that the Hobbs act prohibits common law extortion, which  historically “required the obtaining of items of value, typically cash, from the victim. It did not cover mere coercion to act, or to refrain from acting.”

Here the crowdfunding groups are not obtaining any property from Collins. They are obtaining money from their donors, but those donations are given willingly and not due to force, violence or fear. Because Collins is not being forced to give up any property, extortion simply does not apply.

So if it’s not a crime, why does the effort to pressure Collins feel sort of – icky?

Crowdfunding, Bribery, and Campaign Finance

Public officials occupy a position of public trust. They are supposed to act in the best interests of the public as a whole, to do their best to further the interests of those they have sworn to serve and who pay their salaries. Bribery is a crime because a bribe causes the official to act not for the benefit of all but for the benefit of the bribe payor. The political system is corrupted because the bribe recipient acts not for the public good but for some private benefit.

To prevent this type of corruption, we have laws against bribery. But at the same time, we have a system of privately-financed campaigns. Politicians have a need to raise money for their elections. They routinely campaign and seek donations by promising to vote or act a certain way if elected. Citizens have a fundamental right to express their views to elected officials and to support them financially.

The tension here is obvious. Political donations, particularly very large donations from super-PACs and similar groups, are things of great value. They certainly have the potential to influence a politician who seeks those donations. If a politician votes a certain way not because she truly believes it is in the best interests of the public but because that is the wish of a major donor to her campaign, it becomes pretty hard to distinguish that from bribery. The underlying concerns are exactly the same. Indeed, one could argue that our system of privately financed campaigns is fundamentally a system of legalized, organized bribery.

Politicians, of course, deny they are influenced by large donations. They say things like “my vote is not for sale,” and that their donors generally support their policies but the donations will not induce them to act in any particular way. The donors say pretty much the same thing. And the rest of us are expected just to sit back and gaze admiringly at the emperor’s new clothes.

The Maine crowdfunding effort seems a bit jarring because it is so open and explicit – but it really is just politics as usual within our current system. Individuals and organizations on both ends of the political spectrum routinely promise to grant or withhold support based on particular actions they want politicians to take. Many such promises are made behind closed doors, in the proverbial smoke-filled rooms, although these days politicians are increasingly up front about such attempts to influence them. It wasn’t long ago that Republicans on Capitol Hill were saying they had to pass president Trump’s tax cuts because their big donors were telling them that if they didn’t get this done they shouldn’t ever bother calling for donations again. “Vote this way or you won’t get our money” – that’s really no different from the Maine crowdfunding plan.

The professed outrage of Senator Collins and her Republican colleagues displays all the sincerity of Captain Renault in  Casablanca “discovering” there is gambling going on in Rick’s café:  “I’m shocked, SHOCKED to learn there are people who might try to influence politicians through large contributions!” The crowdfunding effort is just politics as usual — albeit not by the usual suspects — within the campaign finance system Congress and the Supreme Court have given us. If Collins and her colleagues don’t like it, maybe they could join with some Democrats to enact meaningful campaign finance reform.

Who knows, it could be the beginning of a beautiful friendship.

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