Developing: The U.S. Supreme Court on Monday declined to change the long-standing rule that allows federal and state prosecutions for the same offense.
The Supreme Court ruled against Terance Gamble, who was charged with being a felon in possession of a firearm by both the federal government and the state of Alabama. NBC News and SCOTUSblog have early coverage.
Justice Samuel A. Alito Jr., wrote the majority opinion. He was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Stephen G. Breyer, Sonia Sotomayor, Elena Kagan and Brett M. Kavanaugh. Justices Ruth Bader Ginsburg and Neil M. Gorsuch filed dissenting opinions.
A contrary decision by the Supreme Court could have made it more difficult for a state to try someone who is pardoned by the president after federal trial proceedings have begun.
The U.S. Supreme Court on Monday refused to overrule a 170-year-old exception to the constitutional prohibition against prosecuting someone more than once for the same offense.
The exception to the Constitution’s double jeopardy clause, known as the “dual sovereignty doctrine,” allows a state to prosecute a defendant under state law even if the federal government has prosecuted him or her for the same conduct under federal law.
“We have long held that a crime under one sovereign’s laws is not ‘the same offence’ as a crime under the laws of another sovereign,” wrote Justice Samuel Alito Jr. for the 7-2 majority in Gamble v. United States. “We see no reason to abandon the sovereign-specific reading of the phrase ‘same offence,’ from which the dual-sovereignty rule immediately follows.”
Alito said that fidelity to the double jeopardy clause’s text “does more than honor the formal difference between two distinct criminal codes. It honors the substantive differences between the interests that two sovereigns can have in punishing the same act.”
Justices Ruth Bader Ginsburg and Neil Gorsuch wrote separately in dissents.
“A free society does not allow its government to try the same individual for the same crime until it’s happy with the result. Unfortunately, the court today endorses a colossal exception to this ancient rule against double jeopardy,” Gorsuch wrote in his dissent.
Alito rejoined: “The United States is a federal republic; it is not, contrary to Justice Gorsuch’s suggestion, a unitary state like the United Kingdom.”
Ginsburg said in her dissent: “Different parts of the ‘WHOLE’ United States should not be positioned to prosecute a defendant a second time for the same offense. I would reverse Gamble’s federal conviction.”
Terance Gamble is an Alabama man who was convicted and sentenced in state and federal prosecutions for the same crime: felon in possession of a firearm. Gamble, represented by Jones Day partner Louis Chaiten had asked the justices to overrule a doctrine known as the “separate sovereigns” exception to the Fifth Amendment’s double jeopardy clause.
Gamble’s case initially drew considerable attention because of its potential import for Special Counsel Robert Mueller III’s possible federal prosecutions of Russian interference in the 2016 election and involvement of the Trump campaign. Without the separate sovereigns exception, states would be barred from pursuing parallel prosecutions under their state laws.
The outcome of the case was being closely watched for its potential impact on state prosecutions of Paul Manafort, the former Trump campaign manager convicted in federal court in Washington and Virginia on various financial and lobbying crimes. Separately, state prosecutors have brought charges in New York.
During arguments in December, a number of justices appeared skeptical of Chaiten’s position. Chaiten emphasized that the separate sovereigns exception was inconsistent with the original meaning of the double jeopardy clause as well as its text and purpose.
Justice Brett Kavanaugh, himself a self-described originalist, said that argument conflicted with “another part of the original understanding—stare decisis” (standing by precedent). Justice Elena Kagan told Chaiten that his argument seemed “a little bit one note” and that he needed to offer more in order to persuade her to overrule the exception.
At oral argument, Ginsburg told Assistant to the Solicitor General Eric Feigin that the separate sovereigns doctrine has been “widely criticized” by federal judges and academics.
Feigin responded that many of those critical comments also recognized that “some exceptions are necessary, and that successive prosecutions and separate prosecutions are sometimes necessary to vindicate particular sovereign interests.”
Eliminating the exception, Feigin warned, would create a host of practical problems, including deterring cooperation, encouraging aggressive prosecutions, a race to the courthouse, and defendants trying to play each sovereign against the other.
Chaiten, in rebuttal, told the court that at least 20 states do not have the separate sovereigns exception, and at least 37 with respect to certain crimes. “It also seems to have worked out okay,” he said.
Texas Solicitor General Kyle Hawkins shared argument time with Feigin on behalf of a coalition of 36 states.
Legislation in New York to close the double jeopardy “loophole,” which bars state prosecutors from bringing similar charges against individuals pardoned of federal charges by the president of the United States, was reintroduced in the Legislature this week.
The bill is aimed at giving state law enforcement officers, including those in the office of new Attorney General Letitia James, the option to prosecute individuals who receive a presidential pardon before they are tried for federal crimes.
State Sen. Todd Kaminsky, D-Nassau, first introduced the bill during last year’s legislative session and will carry it again in 2019. It was blocked last year in the Senate by Republicans, who largely labeled it as a political attack on President Donald Trump rather than a necessary change to the state’s criminal procedure law.
The bill is more likely to pass in the Senate this year after Democrats won a firm majority in the chamber during last year’s general election. It’s the first time Democrats will control the state Senate in nearly a decade. The party has held the Assembly consistently for decades.
But one-party control of both houses of the Legislature does not mean Kaminsky’s bill will be a slam-dunk this session. Democrats in the Assembly did not unanimously support the bill last year, and Kaminsky said he still needs to speak to the new members of his conference about the legislation.
While the bill was a top priority for him last year, Kaminsky said the gravity of its consequences have grown since the previous legislative session.
“I think the president, the way he speaks about pardons and the way he speaks about the investigation that swirls around him should give us all cause for concern,” Kaminsky said. “Every day this bill is not law, we are potentially taking options off the table for holding him and other presidents accountable who want to flout the rule of law. I think it takes on even greater importance as we move into the new session.”
That’s because the legislation would not apply to individuals pardoned by the president after their trial on federal charges begins. Double jeopardy, which prevents state charges based on an identical set of facts used to bring federal charges, is attached at the start of the trial.
Take the case of Paul Manafort, the former chairman of Trump’s presidential campaign. He was convicted on federal charges of fraud unrelated to the campaign, but could still receive a pardon from Trump. Even if the president decided to grant him clemency, state prosecutors in New York would be barred from bringing their own charges because double jeopardy had already been applied.
That was one of two cases that prompted Gov. Andrew Cuomo to voice his support for the legislation earlier this year. The other was the guilty plea of Michael Cohen, Trump’s former attorney.
“New York must have the ability to stand up against the abuse of power,” Cuomo said at the time. “I call on the State Legislature to amend current State law to close the double jeopardy loophole and ensure that these wrongdoers cannot escape justice—I will sign it into law the same day.”
The legislation also has been strongly supported by James, a Democrat who said last year she would advocate for the bill while in office. James has been clear that she intends to place a microscope over Trump and his family in any way that the state’s chief law enforcement office can. Attorneys under James would need a criminal referral from an appropriate state agency to begin a criminal investigation into any of those individuals.
She repeated her support for the bill earlier this week during an inauguration ceremony on Ellis Island.
“I will work in a legal system where even the most powerful federal official in the country cannot use a loophole to evade justice,” James said.
But some Democrats in the Legislature interpret the bill as too vague in its current form. There are concerns that removing the so-called double jeopardy loophole could backfire at some point down the line, regardless of its intention to hold Trump and future presidents accountable for their choices in clemency.
Consider a scenario where an individual who faces charges related to an act of civil disobedience is pardoned by a president in the future after public pressure to prevent federal prosecutors from moving forward with the case. Under the current bill, a state prosecutor in New York could bring state charges against that individual based on the same set of facts.
That’s the kind of situation Democrats who are reluctant to support the bill want to avoid. Assemblyman Joe Lentol, a Democrat from Brooklyn who sponsored the bill last year, said in a previous interview that members of his conference may be more likely to support the legislation if it was more specific about which crimes would be addressed.
“I think we could do this and really make matters worse for people who are in a situation to get pardoned and have to get retried again,” Lentol said. “I think that these unintended consequences need to be vetted before we move forward.”
Kaminsky said conversations on how the bill could be changed to win the support of those members will begin at the start of this year’s session, which begins next week. With the Senate previously in Republican hands, there wasn’t much use in getting into the weeds on the legislation. This year, Kaminsky said, he plans to hear out the concerns of other Democrats and see if they can be addressed somehow in the legislation.
“I expect those to happen shortly. Obviously the in-depth conversations didn’t have to happen last year because it was clear a Republican Senate wasn’t going to act on it,” Kaminsky said. “I think we have to take those concerns seriously and work with all of our partners, including the executive, to work on this.”
Kaminsky already has a strong ally on the legislation in the Senate. Sen. Jamaal Bailey, a Democrat from the Bronx and the new chair of the Codes Committee, is a co-sponsor of the bill. That committee will have to review the legislation before it heads to the Senate floor for a vote. That’s not necessarily a bellwether, though. Lentol chairs his chamber’s Codes Committee, which did not move the bill last year.
Lawmakers will return to Albany to begin this year’s legislative session on Jan. 9.
A majority of Supreme Court justices sounded unlikely Thursday to overturn more than a century of doctrine that allows states and the federal government to prosecute someone for the same criminal conduct, reports the Washington Post. While it went unmentioned during oral arguments, the case has implications for any pardons that President Trump might issue for those prosecuted by special counsel Robert Mueller and convicted in federal court. Under the status quo, states might still be able to prosecute under their own laws those who receive a presidential pardon, which applies only to federal charges.
The U.S. Supreme Court on Thursday agreed to consider whether to overturn a long-standing rule that allows federal and state prosecutions for the same offense.
If the Supreme Court overturns the precedent, it could make it more difficult for a state to try someone who is pardoned by the president after federal trial proceedings have begun, according to CNN Supreme Court analyst Stephen Vladeck, a University of Texas law professor.