A Supreme Court case about a relatively arcane aspect of constitutional law could have enormous implications for whether those pardoned by President Trump can be brought to justice.
On Thursday, December 6, the Supreme Court heard oral arguments in Gamble v. United States. The issue is whether a person prosecuted in federal court also can be separately prosecuted in state court or whether double jeopardy bars this.
The Fifth Amendment to the Constitution prohibits double jeopardy, which means that once a person has been prosecuted for a crime the individual cannot be prosecuted again for that same crime. The classic instance is a murder prosecution that ends in an acquittal and then the defendant admits to the crime or new overwhelming evidence is found of the defendant’s guilt. Double jeopardy means that the government cannot prosecute the person again.
But since Supreme Court decisions in 1959, there has been a major exception to the prohibition against double jeopardy. The federal government and state governments are considered separate sovereigns and a prosecution in one of these jurisdictions, whether it leads to a conviction or acquittal, does not preclude a subsequent prosecution in the other.
A famous example of this was the prosecution of the police officers who beat Rodney King in 1991. The four officers were initially prosecuted in California state court and all were acquitted. They then were prosecuted in federal court in Los Angeles and two of the officers were convicted. It did not violate double jeopardy because of the “separate sovereigns” rule. In Gamble v. United States, the Supreme Court is considering whether to overrule this long-standing doctrine. In 2015, Terance Gamble was pulled over by police for having a faulty headlight. The police officer smelled marijuana and searched Gamble’s car, where the officer found two bags of marijuana and a handgun.
Gamble was convicted in Alabama state court of violating state drug laws and being a felon in possession of a firearm and was sentenced to one year in prison. While the state prosecution was underway, Gamble was prosecuted in federal court for being a felon in possession of a firearm in violation of federal law. He objected that this violated double jeopardy. But the federal court rejected this argument based on the separate sovereigns doctrine and Gamble was sentenced to nearly four years in federal prison, followed by a year of supervised release.
On the one hand, I always have been skeptical of the separate sovereigns doctrine. The prohibition against double jeopardy is meant to protect against being prosecuted twice for the same crime and that is exactly what happened to Terance Gamble. But at the same time, the separate sovereigns doctrine is a reflection of a basic characteristic of American government and respect for the distinct powers of the federal and state governments. Also, precedent matters and the Court should be reluctant to overturn a long-standing principle.
All of this has taken on much greater importance because of the prospect of Donald Trump pardoning those who plead guilty or were convicted as a result of Robert Mueller’s investigation. Former campaign manager Paul Manafort already was convicted by a jury and now faces additional charges for other crimes. He likely will receive a long prison sentence. It is increasingly likely that members of Trump’s family -- Jared Kushner and Donald Trump, Jr. -- will face criminal prosecution for lying to federal investigators and Congress about their contact with Russians and business dealings with Russia.
There is a widespread worry, which I share, that Trump will pardon all of these individuals. In fact, there is the unresolved constitutional question of whether Trump can pardon himself. Recent revelations in connection with Michael Cohen’s plea agreement strongly indicate Trump might have directed Cohen to violate federal campaign and tax laws by making payments to women to remain silent about their sexual relationships with Trump. No court ever has addressed whether a president can pardon himself because no president has tried that.
A president may issue pardons only for federal crimes, not for state law offenses. Therefore a presidential pardon would not preclude state governments from prosecuting those pardoned for committing state law crimes so long as the separate sovereigns doctrine remains the law.
A basic aspect of the rule of law is that no one, not even the president or members of the president’s family, is above the law. Presidential pardons for Manafort, or for Kushner or Trump Jr., let alone for Trump himself, would make a mockery of this aspect of the rule of law. It is why state governments where the crimes occurred should be ready to prosecute those pardoned by Trump. And it is exactly why the Supreme Court should not overrule the separate sovereigns doctrine.