Jus­tices cau­tious in case about dou­ble charges

The Washington Times Daily - - POLITICS - BY ALEX SWOYER

Some of Pres­i­dent Trump’s op­po­nents had warned that a case be­fore the Supreme Court on dou­ble jeop­ardy could ex­pand his par­don pow­ers to pro­tect po­lit­i­cal al­lies — but the jus­tices avoided that is­sue dur­ing oral ar­gu­ment Thurs­day.

They fo­cused in­stead on long­stand­ing prece­dent and con­sti­tu­tional rights over whether a de­fen­dant can be charged for the same crime twice, in this case in both fed­eral and state courts.

Jus­tices from both sides of the ide­o­log­i­cal di­vide ap­peared skep­ti­cal of over­turn­ing decades of le­gal doc­trine that has said the fed­eral and state gov­ern­ments are “dual sov­er­eigns,” and can each bring charges for the same crime if it wants.

“This is a 170-year-old rule,” said Jus­tice Elena Ka­gan.

The case in­volves two-time felon Ter­ance Gam­ble, who was nabbed for be­ing a felon in possession of a gun. Both Alabama and the fed­eral gov­ern­ment charged him for the vi­o­la­tion, which he said amounts to dou­ble jeop­ardy.

“There is an an­cient rule not to be tried twice for the same crime,” said Louis A. Chaiten, Gam­ble’s lawyer, told the court.

The fed­eral gov­ern­ment, though, ar­gued it’s al­lowed un­der the “sep­a­rate sov­er­eigns” ex­cep­tion, which jus­tices have ruled as valid since the mid­dle of the 19th cen­tury and which Gam­ble wants to have over­turned.

“I can point to a lot of prac­ti­cal problems that could de­velop,” said Eric J. Fei­gin, the Jus­tice Depart­ment’s at­tor­ney, adding that the fed­eral gov­ern­ment would want to main­tain an in­ter­est in the reg­u­la­tion of firearms, and not leave that only to the states.

Jus­tice Brett M. Ka­vanaugh, the new­est mem­ber of the high court, sug­gested the felon must show an “egre­gious wrong” in en­cour­ag­ing the court to undo cen­turies of prece­dent. And Jus­tice Stephen G. Breyer ap­peared wor­ried about what would hap­pen to civil rights pros­e­cu­tions, typ­i­cally brought by the fed­eral gov­ern­ment, if the court were to rule for Gam­ble.

He also won­dered how far back the courts could go in over­turn­ing prece­dent, point­ing to an early found­ing-era rul­ing that helped so­lid­ify the courts’ claims to fi­nal con­sti­tu­tional say over laws.

“Maybe Marbury v. Madi­son was wrong?” Jus­tice Breyer said. “Look at the doors we are open­ing up.”

Jus­tice Sa­muel A. Al­ito said bar­ring dual pros­e­cu­tions could cre­ate a sit­u­a­tion where an in­ept prose­cu­tor in an­other coun­try failed to con­vict some­one for killing an Amer­i­can over­seas — and U.S. au­thor­i­ties would be pow­er­less to launch their own pros­e­cu­tion.

Mr. Chaiten said there’s al­ready a prece­dent for in­ter­na­tional cases, with U.S. courts able to de­cide whether to rec­og­nize the for­eign trial. He said Gam­ble’s case is dif­fer­ent since it deals with states and the fed­eral gov­ern­ment.

Jus­tice Ka­vanaugh wasn’t buy­ing it. “Your po­si­tion would sub­stan­tially ham­per those na­tional se­cu­rity ef­forts,” he told Mr. Chaiten.

A num­ber of con­ser­va­tive and liberal or­ga­ni­za­tions backed Gam­ble, say­ing the ex­plod­ing fed­eral crim­i­nal code has grown to a point where there’s too much over­lap with state laws cre­at­ing too many chances for dou­ble jeop­ardy.

Ilya Shapiro, a se­nior fel­low with the Cato In­sti­tute, which sided with Gam­ble, had pre­vi­ously pre­dicted a fa­vor­able rul­ing, but was sur­prised at the di­rec­tion of Thurs­day’s ar­gu­ment.

He emerged say­ing he could now see a 6-3 split in fa­vor of the gov­ern­ment and dual pros­e­cu­tion — which made him won­der why the court took the case, given that the lower courts had al­ready af­firmed the pros­e­cu­tion.

Some le­gal an­a­lysts said if the jus­tices did over­turn the doc­trine and rule that only one set of charges can be brought, it would mean Mr. Trump could par­don his al­lies from fed­eral pros­e­cu­tions from mat­ters be­ing probed by the spe­cial coun­sel’s of­fice. That would ef­fec­tively shut out states from bring­ing charges even if their own laws had been vi­o­lated.

But Mr. Trump and any po­ten­tial par­dons stem­ming from the spe­cial coun­sel’s probe didn’t come up when the two sides sparred dur­ing oral ar­gu­ments Thurs­day.


Supreme Court jus­tices fo­cused on prece­dent and con­sti­tu­tional rights over whether a de­fen­dant can be charged for the same crime twice. The case in­volves two-time felon Ter­ance Gam­ble.

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