Gamble v. United States and the “Separate Sovereigns Exception” to Double Jeopardy

The process to elevate Judge (now Justice) Brett Kavanaugh to the United States Supreme Court was highly contentious. Many commentators focused on what impact Kavanaugh’s placement on the Court might ultimately have on Roe v. Wade, and what impact his views on whether a President (i.e. President Trump) could be subpoenaed, which could very well happen.

Of equal interest is how he would rule on the validity of the “Separate Sovereigns Exception” to Double Jeopardy, which is at issue in the pending Supreme Court case of Gamble v. United States. If we assume that the four sitting conservative Justices would vote to eliminate the exception, and that the four sitting liberal Justices would vote to uphold the exception, Kavanaugh’s fifth conservative vote could end this exception to Double Jeopardy.

His vote could have some significant implications for President Trump’s associates who are under criminal investigation, including by Special Counsel Robert Mueller, and potentially even President Trump himself. But first, let me give some definitions.

Double Jeopardy provides that an accused person cannot be tried for the same crime twice. In the United States, the concept is entrenched in the Fifth Amendment to the Constitution, which states that “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” In 1896 in United States v. Ball, the Supreme Court held “the prohibition is not against being twice punished, but against being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial.”

But the “Separate Sovereigns Exception” holds that an accused can be tried twice (or more than twice) where each prosecution is conducted by a separate sovereign. For example, if an individual allegedly commits a crime that violates both federal and state law, the two sovereigns — the federal government and a state government — can each prosecute the crime, and the accused could be convicted twice.

The Separate Sovereigns Exception underscores the practical implications of the scope of the President’s Pardon Power. The President of the United States can pardon a convicted criminal pursuant to Article II, Section 2 of the Constitution, which states that he “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” But this only extends to federal crimes, and the President cannot pardon anyone convicted of state crimes.

Consider this scenario. Let’s assume that a former associate of President Trump violated a campaign finance law in the last Presidential election. If he were convicted under federal law, President Trump could immediately issue a pardon. And secure in the knowledge of a pardon in the event of a conviction, that associate could safely turn down a plea bargain to plead to a lesser offense and receive probation only in exchange for cooperating in the prosecution of a higher-ranked Trump associate. But, if the alleged conduct also violated (for example) New York criminal law, the Fifth Amendment would not apply, and no Presidential pardon could be forthcoming. This has significant implications for Mueller’s investigation, where some wrongdoing could constitute violations of both federal and New York law.

That brings us to Justice Kavanaugh, the shift from a conservative/ liberal balance of four to four to a conservative/ liberal balance of five to four, and the pending case of Gamble v. United States.

In Gamble, Terance Martez Gamble, following a traffic stop, was prosecuted under Alabama and federal law for possessing a gun while being a felon. After being convicted under Alabama law he was sentenced to one year in prison. He was then tried in federal court and pled guilty. He was sentenced to 46 months. Based on the Separate Sovereigns Doctrine, the District Court and Eleventh Circuit Court of Appeal rejected his double jeopardy argument, but the Supreme Court agreed to hear the case earlier this year. His cert petition noted that Justice Ginsburg, joined by Justice Thomas, had suggested in Puerto Rico v. Sanchez Valle that the Separate Sovereigns Doctrine needed to be re-examined in a future case.

Sanchez involved a convicted felon illegally possessing a gun — not a politically fraught criminal investigation with incredibly high-stakes — and was handed down in a very different political context. Gamble is being heard in a transformed political environment. As evidence, consider the fact that Senator Orin Hatch has filed an amicus brief arguing that the Separate Sovereigns doctrine should be overturned. A spokesman for Hatch has denied any connection to the issues raised by the potential prosecutions of former associates of President Trump. But discarding the Separate Sovereigns Doctrine would have the effect of expanding the scope of the Double Jeopardy Clause, which would in turn expand the effective reach of a Presidential pardon — might sharply circumscribe the capacity of state law to punish criminal wrongdoing arising out of the Mueller investigation. However, there are good arguments to the contrary, if the state and federal crimes are sufficiently distinct. So Gamble will be closely watched, and especially to see if the Supreme Court divides on ideological lines, with Justice Kavanaugh’s new vote being pivotal.

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