Presidential pardon power on SCOTUS line

Double jeopardy case may affect standard for reversing holdings

WASHINGTON — Justices of the U.S. Supreme Court — including newly installed Justice Brett Kavanaugh — expressed a wariness to rule in a double jeopardy case in a way that would boost President Trump’s pardon power in cases involving former campaign chairman Paul Manafort and others.

On Thursday, the court considered whether prosecution in state and federal court for the same conduct violates the Fifth Amendment’s prohibition of double jeopardy. If the court holds that it does, overturning precedent in the process, then a presidential pardon issued to Manafort or anyone else for federal convictions could not be circumvented by state courts bringing charges for the same offense.

The justices’ decision in the case, Gamble v. United States, could not only affect the presidential pardon power, but it could also set a new standard by which other past court precedents — from rulings affirming abortion rights to affirmative action — can be overturned.

That’s the issue the justices focused on at length during the argument, which was expanded to 80 minutes rather than the usual 60. For 170 years, the court has held that states are separate and sovereign from the federal government, and therefore have the power to prosecute and punish crimes even if federal law criminalizes the same conduct.

And Kavanaugh and other justices made a point to note that the standard for reversing past Supreme Court holdings is very high — and unlikely met in this case.

“The bar that you have to clear, I believe, is not just to show that it’s wrong but to show that it’s grievously wrong,” Kavanaugh explained to the attorney advocating to overturn the double jeopardy exception. “Egregiously wrong. Something meaning a very high bar, because stare decisis is itself a constitutional principle.”

These words are likely to appear in every new brief filed in opposition to the challenge of Harvard’s affirmative action policy, challenges to overturn the court’s decision affirming abortion rights and more.

On the other side, Justice Ruth Bader Ginsburg expressed concern that allowing state and federal prosecutors to bring separate charges for the same conduct constitutes an unconstitutional “double whammy.” That makes Ginsburg an unlikely ally of Trump if he hopes the court broadens the reach of any pardons he issues.

A decision is expected before the court’s term wraps up in June.

AP FILE PHOTOS SUPREME DECISION: The Supreme Court considered a case this week on whether prosecution in state and federal court for the same conduct is unconstitutional. Justices, from bottom left, Stephen Breyer, Clarence Thomas, John G. Roberts, Ruth Bader Ginsburg, Samuel Alito Jr., from top left, Neil Gorsuch, Sonia Sotomayor, Elena Kagan and Brett Kavanaugh, above, are set to rule on the case by June.