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Supreme Court Upholds Double Jeopardy Rule That Might Weaken Reach Of Trump’s Pardons

Kevin Daley on June 17, 2019

The Supreme Court left undisturbed Monday a legal rule that allows state and federal governments to prosecute individuals for the same conduct despite the Constitution’s ban on double jeopardy.

The case was closely watched because of its possible ramifications for President Donald Trump, given continued speculation that he could pardon confidants facing criminal convictions like Paul Manafort. The pardon power authorizes the president to grant clemency for federal crimes, but does not reach state matters.

The Fifth Amendment’s double jeopardy clause prohibits multiple prosecutions for the same offense. An exception to this rule called the separate sovereigns doctrine allows state and federal governments to bring successive prosecutions for the same crime. Monday’s decision leaves the doctrine in place, meaning any person Trump pardons remains exposed to state prosecutions.

Former special counsel Robert Mueller was working with the New York attorney general to build a case against Manafort as of August 2017.

The case was one for unexpected ideological bedfellows. Justice Samuel Alito delivered Monday’s opinion for a seven-justice majority, while Justices Ruth Bader Ginsburg and Neil Gorsuch dissented.

“All told, [the] evidence does not establish that those who ratified the Fifth Amendment took it to bar successive prosecutions under different sovereigns’ laws — much less do so with enough force to break a chain of precedent linking dozens of cases over 170 years,” the Court’s decision reads.

Monday’s case arose in Alabama, when Terence Gamble was arrested during a 2015 traffic stop after police recovered two baggies of marijuana and a 9mm handgun from his car. State prosecutors charged Gamble, a convicted felon, for illegal possession of a firearm. A federal charge for the same crime followed.

Ginsburg has questioned the separate sovereigns doctrine in the past, often joined by conservative or libertarian jurists who fear the modern expansion of federal criminal law makes successive prosecutions and draconian punishments common. Yet liberals, often wary of prosecutorial overreach, say the rule has been important for civil rights enforcement.

“The double jeopardy proscription is intended to shield individuals from the harassment of multiple prosecutions for the same misconduct,” Ginsburg wrote in a 2016 opinion, which Justice Clarence Thomas joined. “Current ‘separate sovereigns’ doctrine hardly serves that objective.”

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