Dual prosecutions reaffirmed

State, U.S. may pursue same crime, Supreme Court rules

WASHINGTON — The Supreme Court on Monday reaffirmed the constitutional rule that allows both state and federal governments to prosecute someone for the same crime, a ruling with implications for President Donald Trump’s ability to offer pardons.

The court’s 7-2 decision rejected arguments that subsequent prosecutions violate the Bill of Rights’ prohibition on more than one prosecution or punishment for the same offense. Since the 1850s, the court has allowed one exception to that double-jeopardy prohibition: State and federal governments can prosecute the same conduct as separate constitutional ac

tors with their own sovereign authority.

Had the court sided with the defendant, states might have been struggled to pursue criminal charges against defendants in the Russia investigation in the event they were pardoned by Trump.

Justice Samuel Alito Jr. wrote for the majority; Justices Ruth Bader Ginsburg and Neil Gorsuch dissented.

The case drew special attention because of Trump’s musings that he might pardon some officials caught up in investigations of the administration.

New York authorities already have indicted Paul Manafort, Trump’s former campaign chairman. Manafort has been sentenced to more than seven years on federal conspiracy and fraud convictions. He also has been charged with mortgage fraud and other crimes in New York.

Trump could pardon Manafort for his federal convictions, but with Monday’s ruling, Manafort still would have to answer to the state charges by the Manhattan district attorney’s office.

The Supreme Court has long permitted successive prosecutions and punishments if one is brought by state prosecutors and the other by the federal government.

Groups of conservatives and liberals who oppose the double-jeopardy exception

argue that it exposes defendants to the potential harassment, trauma, expense and sometimes extra punishment that the clause was designed to prevent.

In more modern times, the exception has been used to enforce civil rights. For instance, the Los Angeles police officers who beat motorist Rodney King in 1991 were tried and acquitted in 1992. Within days of the acquittal, federal prosecutors brought charges against the officers.

The federal government and the states argue that they have their own interests in upholding their laws, and that they do not abuse the right.

“Each state has a strong interest in its sovereign power to prosecute violations of its laws regardless of the prosecutorial decisions of other sovereigns, whether the federal government or other states,” said a brief filed by Texas and 35 other states.

At the same time, more than 20 states have their own restrictions on prosecuting crimes for which an individual has already been prosecuted, as does the Department of Justice.

GINSBURG AND THOMAS

The motivation for the court to accept the case decided on Monday came from an unlikely duo: Ginsburg and Justice Clarence Thomas.

In 2016’s Puerto Rico v. Sanchez Valle, the court ruled 6-2 that because Puerto Rico is not a state, it is not a separate sovereign for double-jeopardy purposes. Ginsburg

concurred with the ruling, and, joined by Thomas, called for a new look at the exception for states.

“The matter warrants attention in a future case in which a defendant faces successive prosecutions by parts of the whole U.S.A.,” Ginsburg wrote.

The case that would address that matter, Gamble v. U.S., started long before Trump took office.

The case was brought by Terance Gamble, who was convicted of robbery in Mobile County, Ala., in 2008 and two domestic violence charges in 2013. Under both state and federal law, such a convicted felon may not possess a firearm.

But police found a firearm in Gamble’s car when he was stopped in 2015. Gamble pleaded guilty to the state charges and was sentenced to a year in prison.

Federal prosecutors also brought charges, and he received a lengthier sentence with that conviction. Gamble said that violated the double-jeopardy clause of the Constitution’s Fifth Amendment.

Alito wrote that Gamble had failed to make his case.

“The historical evidence assembled by Gamble is feeble,” he wrote. “Pointing the other way are the clause’s text, other historical evidence and 170 years of precedent.”

Alito wrote that states are separate sovereigns, much as foreign nations are, noting that U.S. prosecutions of actions in foreign countries are

specifically allowed.

He imagined a scenario in which a U.S. national was murdered in another country. Both nations, he wrote, would have an interest in prosecuting the murderer. Under Gamble’s argument, Alito wrote, no U.S. court could prosecute the suspect if he were already tried in foreign court.

“The murder of a U.S. national is an offense to the United States as much as it is to the country where the murder occurred and to which the victim is a stranger,” he wrote. “That is why the killing of an American abroad is a federal offense that can be prosecuted in our courts, and why customary international law allows this exercise of jurisdiction.”

Thomas joined Alito’s opinion, and wrote separately to say that after studying the issue more, “the historical record does not bear out my initial skepticism of the dual-sovereignty doctrine.”

But Thomas, while supporting the longstanding interpretation of double jeopardy, used the bulk of his 17-page opinion to make an extended critique of the court’s general respect of precedents.

“When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it,” Thomas wrote.

Ginsburg, who at oral argument called federal and state prosecutions a “double whammy,” was steadfast in her concerns.

She said the court should

have overturned the double-jeopardy decisions at issue in Gamble’s case, saying they had “been subject to relentless criticism by members of the bench, bar and academy.”

Ginsburg was also critical of the majority’s historical approach to the question. Much of Alito’s majority opinion was a detailed account of old English decisions, treatises and founding-era materials; at one point he wrote, “from the very dawn of the common law in medieval England until the adoption of the Fifth Amendment in 1791.”

“This case,” she wrote, “does not call for an inquiry into whether and when an 18th-century English court would have credited a foreign court’s judgment in a criminal case. Gamble was convicted in both Alabama and the United States, jurisdictions that are not foreign to each other. English court decisions regarding the respect due to a foreign nation’s judgment are therefore inapposite.”

Reaffirming the precedent diminishes “the individual rights shielded by the Double Jeopardy Clause,” she wrote. “Different parts of the ‘WHOLE’ United States should not be positioned to prosecute a defendant a second time for the same offense.” The capitalization reflected a passage in the Federalist Papers.

GORSUCH

Gorsuch wrote his own dissent. He was not part of the 6-2 ruling in Puerto Rico v. Sanchez Valle; he joined the court almost a year later, returning it to nine justices.

Gorsuch argued that the majority had violated fundamental fairness.

“A free society does not allow its government to try the same individual for the same crime until it’s happy with the result,” he wrote. “Unfortunately, the court today endorses a colossal exception to this ancient rule against double jeopardy.”

Gorsuch wrote that when governments “unleash all their might in multiple prosecutions against an individual, exhausting themselves only when those who hold the reins of power are content with the result, it is the poor and the weak, and the unpopular and controversial, who suffer first — and there is nothing to stop them from being the last.

“The separate sovereigns exception was wrong when it was invented, and it remains wrong today.”