The Supreme Court 'Double Jeopardy' Case That Could Impact the Mueller Investigation

by | December 6, 2018

By David G. Savage

The Supreme Court justices sounded unwilling Thursday to overturn a long-standing precedent that allows a state and the federal government to prosecute a person for the same crime _ despite the constitutional ban on "double jeopardy."

A lawyer for an Alabama man who was prosecuted in both state and federal court for being a felon in possession of a gun urged the court to restore the "original meaning" of the Fifth Amendment protection against double jeopardy.

But his argument ran into surprisingly strong skepticism from both liberal and conservative justices, who said they were inclined to stick with precedent.

"This is a 170-year-old rule," said Justice Elena Kagan. It has been repeatedly upheld by more than 30 justices, and Kagan said she was "uncomfortable" in tossing it out now.

In the 1960s, the U.S. Justice Department used the exception to protect blacks and civil rights workers in the South. If violent crimes against them resulted in acquittals before all-white state juries, federal prosecutors could bring a separate prosecution under federal civil rights law.

More recently in Los Angeles, this doctrine allowed federal prosecutors to charge and convict four police officers in the beating of motorist Rodney King after they had been acquitted of essentially the same charges under state law in Simi Valley.

Some legal experts said a high court ruling striking down the "separate sovereigns" exception could pose problems for special counsel Robert S. Mueller III and his prosecutions of advisers to President Donald Trump, including his former campaign manager, Paul Manafort.

If Trump were to pardon Manafort for the federal crimes and the Supreme Court eliminated the exception, states could be limited in bringing their own charges for the same crimes.

But during arguments Thursday it looked as if such concerns were premature.

Justice Brett M. Kavanaugh appeared to agree with Kagan. Upholding long-standing precedents "is part of the original understanding of the Constitution," he said, adding that the justices should not overturn such a precedent without clear evidence that it was wrong and unworkable.

Earlier this year, the justices voted to hear the case, which asked them to "overrule the 'separate sovereigns' exception to the double jeopardy clause."

This refers to the doctrine that the federal government and the states are separate sovereigns and, as such, may prosecute a person for the same offense. In recent decades, legal scholars argued this idea conflicts with the history and wording of the Fifth Amendment, which says, "No person shall be ... subject for the same offense to be twice put in jeopardy of life and limb."

Two years ago, Justices Ruth Bader Ginsburg and Clarence Thomas joined in urging the court to reconsider this rule. And during Thursday's argument, Justice Neil M. Gorsuch sounded as though he agreed.

But the other six justices in comments and questions indicated they leaned in favor of maintaining the current rule.

The justices voiced concern about the possibility of undercutting federal civil rights cases.

The case before the court involves Terance Gamble, an Alabama man who was convicted by state authorities and then by federal prosecutors for being a felon in possession of a gun.

When Gamble was stopped for a traffic violation in 2015, a police officer found a loaded handgun in his car. He had pleaded guilty in 2008 to a robbery, a felony crime. He was later charged with threatening his girlfriend with a gun in 2013 and with firing shots into a "title loan business" in 2014. State prosecutors charged him with these offenses, including being a felon in possession of a firearm. He received a year in prison. But federal prosecutors also indicted him as a felon with a gun, and he eventually was sentenced to about four years in federal prison.

As expected, the 11th Circuit Court in Atlanta rejected Gamble's appeal. "Prosecution in federal and state court for the same conduct does not violate the double jeopardy clause because the state and federal governments are separate sovereigns," the judges said.

The court has upheld the exception ever since it was first established in the early 1800s. But not without debate.

"An act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each," Chief Justice William Taft wrote in 1922. His opinion upheld the state conviction of Vito Lanza, a bootlegger outside Seattle for selling illegal liquor and his subsequent federal prosecution under the new National Prohibition Act.

Other justices never embraced the idea. "The legal logic used to prove one thing to be two is too subtle for me to grasp," Justice Hugo Black said in 1959.

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