At this moment, a case making its way through the court system is garnering an unusual amount of attention. It’s a case about a convicted robber in Alabama who was found in possession of a gun and charged by both state and federal authorities. For 150 years, the Supreme Court has held that these kind of cases, where a violation can be prosecuted under both state and federal laws, don't violate the Constitution's prohibition against double jeopardy. That's because state, federal, tribal and the military justice systems correspond to/are separate sovereigns.. But as The Atlantic reports, Republicans have developed a sudden interest in just this type of case.
Utah lawmaker Orrin Hatch, who sits on the Senate Judiciary Committee, filed a 44-page amicus brief earlier this month in Gamble v. United States, a case that will consider whether the dual-sovereignty doctrine should be put to rest.
Republicans, always talk a good game about promoting the sovereign right of states … so long as what the states are doing agrees with them. But here Hatch is willing to take a power away from every state. And why would that be? Two words: Mueller investigation.
The ability of states to charge someone with state crimes, even if that someone has been charged with federal crimes related to the same incident represents a considerable amount of leverage within the investigation into Trump’s campaign and associates. Though New York currently has its own double jeopardy law that would prevent recharging on some of these incidents—which is something any state could do—the charges applied to Paul Manafort and others through the special counsel’s office have often seemed tailored to leave openings for state charges in case of a Trump pardon. It’s a big part of what’s made Robert Mueller’s indictments “pardon proof.” The threat of separate state proceedings is an effective inducement to cooperate in exchange for a big reduction in sentencing.
Republicans are hopeful that if Gamble shuts down the option to recharge at the state level, anything where Mueller brings a federal charge will be off the table for the states. Of course, Mueller has already worked directly with attorneys general at the state level in discussing and planning some cases with this in mind. It’s seemed that, from the beginning, the special counsel has proceeded with the understanding that Trump might pardon anything. But with the possibility of Gamble coming in and Rosenstein going out, hanging on to the agreements that Mueller has secured might be difficult … especially if there is no Mueller.
In the case of Manafort, both New York and Virginia state prosecutors could have a go at recharging Trump’s campaign chair for any of the bank fraud or tax-evasion charges should Trump hand him a pardon. But Gamble could wipe that option off the table. It doesn’t mean they couldn’t try — after all, is failure to pay state taxes part of “the same act” in such a case—but it would certainly wrong-foot prosecutors and strengthen Trump’s hand when it comes to pardons.
Of course, there’s one person who Gamble wouldn’t help directly. And that’s Donald Trump.
Assuming that Robert Mueller abides by the guidelines of the Department of Justice, his report on Donald Trump won’t include actual indictments. If that’s the case, Trump could still be indicted at the state level no matter what the state or federal laws say about double jeopardy. For Trump, Mueller’s report might be considered a copy-and-paste sourcebook for charges that could roll out from the AG of New York or other states.
Of course, those state-level indictments would immediately be challenged. And the result of those challenges would almost certainly be determined by the Supreme Court. Which is where someone with Brett Kavanaugh’s attitudes would be really helpful to Trump.
To get maximum benefit, Republicans need it all. They need Rosenstein out, Kavanaugh in, and Gamble decided in their favor. Any one of those three is a bad thing so far as the investigation into Trump’s campaign goes. All three could really limit the possible consequences.
But here’s the thing: On this one issue, and just this one issue, Orrin Hatch is mostly right.
In most cases, the state-federal double charging option is used merely to slap additional years onto a sentence, or to provide prosecutors with additional threats to wave at a suspect. There are many, many cases where it’s possible to threaten someone with not just an array of state charges, but promise them a second trial on federal charges, many of them with “tough on crime” minimum sentences. The ability to charge at both levels helps prosecutors set a stack of potential decades on the table—before they offer a “reasonable” year or two to people who might well be innocent.
The great majority of the time, this double-jeopardy exception empowers a part of the system that already has more than enough power to bludgeon people into accepting miserable plea deals they shouldn’t take, or to add unwarranted years to a sentence that may already be too long. Like many such rules, it differentially affects the poor and communities of color. So 150 years old or not, it should be ended or at least severely limited.
In the end, Gamble isn’t likely to do that. No matter what the ruling, it’s likely to be much more limited in scope than either those who hate how prosecutors use such rules to force suspects into accepting plea deals or those looking to give Trump more punch for his pardons would want.
And even if Gamble results in the broadest possible ruling, it still won’t say whether a pardon for a federal crime protects someone against prosecution at the state level. That’s going to take another case.