Top Court Hears Double Jeopardy Case With Ramifications on Russia Probe

December 6, 2018 Updated: December 6, 2018

A lawyer for an Alabama man convicted of the same offense in state and federal courts urged the Supreme Court to rein in the federal government’s prosecutorial powers, in a double jeopardy case that could have ramifications for those affected by special counsel Robert Mueller’s ongoing Russia investigation.

Mueller’s shadow loomed large over the oral arguments in the case on Dec. 6, even though he wasn’t mentioned. The case has attracted interest because it could have an impact on Mueller’s ongoing investigation of former Trump campaign manager Paul Manafort and other Trump associates. Manafort entered guilty pleas to conspiracy charges unrelated to the Trump campaign or the 2016 election, and he has reportedly been cooperating with Mueller.

States may yet pursue indictments against Manafort and other individuals associated with the president. As of August 2017, Mueller had reportedly been collaborating with then-New York Attorney General Eric Schneiderman to prepare a case against Manafort. Trump could pardon Manafort and others, but his clemency authority covers federal, not state, offenses.

Trump has not ruled out a pardon for Manafort. “It was never discussed, but I wouldn’t take it off the table,” the president told the New York Post a week ago.

In the case before the Supreme Court, the petitioner, Terance Martez Gamble, was convicted of felony second-degree robbery in Mobile County, Alabama, in 2008, and on two counts of domestic violence five years later, according to a case preview by Alan Raphael of Loyola University Chicago School of Law. Both Alabama and federal law forbid convicted felons from possessing firearms. Gamble’s car was pulled over for a traffic violation in 2015. Police found a gun in his car.

Gamble pleaded guilty to a state-level charge of being a felon in possession of a firearm and completed a one-year prison term. Based on the same search and weapon that gave rise to state charges, during the prosecution the federal government charged him with possessing a gun while a felon. Before pursuing the indictment, the U.S. attorney obtained permission from the Department of Justice under something called the Petite Policy to bring the charge. The policy allows federal prosecutions after state convictions in certain circumstances.

Gamble argued the federal charge should be dismissed because he claimed it violated his Fifth Amendment right against being placed in legal jeopardy twice for the same crime. A U.S. district court threw out the motion citing the “separate sovereigns exception” to the Double Jeopardy Clause.

Since its ruling in Abbate v. United States in 1959, the Supreme Court has allowed “successive prosecutions by separate sovereigns, such as the federal and state governments, even though the subsequent charge would be barred if both were brought by the same government,” Raphael writes.

Gamble pleaded guilty to the federal charge and received a sentence of 46 months. The Atlanta-based U.S. Court of Appeals for the 11th Circuit upheld the federal conviction. On June 28, the Supreme Court agreed to hear Gamble’s appeal from that decision.

Gamble argues the separate sovereigns exception should be overruled because the language in the Double Jeopardy Clause makes no exceptions, and is contrary to the meaning intended by the framers, old English precedents, and legal writings from England and the early United States.

“The separate sovereigns exception to the Double Jeopardy Clause is inconsistent with the text and original meaning of the Double Jeopardy Clause,” Gamble’s attorney, Louis Chaiten of Cleveland, Ohio, told the justices.

“There is no dispute that the text of the clause was understood to incorporate English practice. And there was no practice of inter-sovereign successive prosecutions in all of English history or in American history for the first century of this republic after their framing.”

Justice Elena Kagan challenged Chaiten. “And if we were to adopt the rule that you suggest, it might very well be that either the federal government would have to subordinate its interests to the states or that the states would have to subordinate their interests to the federal government.”

Kagan said Chaiten’s argument seemed “frankly, a little bit one-note.” She said “30 justices” have upheld the separate sovereigns exception.

If the legal exception were to be overturned, “how does it work as a practical matter?” Chief Justice John Roberts asked Chaiten.

“Is it a race to the courthouse?” Roberts said.

The Trump administration says there is no good reason to overturn 170 years of precedent that are consistent with the separate sovereigns exception. Under America’s constitutional framework, both the federal and state governments are sovereign and their powers ought to be respected, Assistant to the U.S. Solicitor General Eric Feigin and Texas Solicitor General Kyle D. Hawkins told the court.

Justice Ruth Bader Ginsburg, who referred to placing an individual in double jeopardy as “a double whammy,” said Feigin. “You have to concede, won’t you, that this rule, this separate sovereign rule, has been widely criticized by both academics and federal judges?”

Addressing Feigin, Justice Neil Gorsuch expressed concern about “the proliferation of federal crimes” which number “over 4,000 statutes now and several hundred thousand regulations,” and of the opportunity for the federal government “to seek a successive prosecution if it’s unhappy with even the most routine state prosecution.”

“And that it is awkward, isn’t it, to say that there are two sovereigns who get to multiply offenses against you?” Gorsuch said. “I can’t think of another case where federalism is used, as Justice Ginsburg indicated, to allow greater intrusions against the person, rather than to protect more against them.”

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