Gamble v. United States isn’t related to the Russia investigation. But the outcome—which one senior Republican senator has tried to influence—could still have consequences for the probe.
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. The 150-year-old exception to the Fifth Amendment’s double-jeopardy clause allows state and federal courts to prosecute the same person for the same criminal offense. According to the brief he filed on September 11, Hatch believes the loophole should be closed. “The extensive federalization of criminal law has rendered ineffective the federalist underpinnings of the dual sovereignty doctrine,” his brief reads. “And its persistence impairs full realization of the Double Jeopardy Clause’s liberty protections.”
Within the context of the Mueller probe, legal observers have seen the dual-sovereignty doctrine as a check on President Trump’s power: It could discourage him from trying to shut down the Mueller investigation or pardon anyone caught up in the probe, because the pardon wouldn’t be applied to state charges. Under settled law, if Trump pardoned his former campaign chairman Paul Manafort, for example—he was convicted last month in federal court on eight counts of tax and bank fraud—both New York and Virginia state prosecutors could still charge him for any crimes that violated their respective laws. (Both states have a double-jeopardy law that bars secondary state prosecutions for committing “the same act,” but there are important exceptions, as Fordham Law professor Jed Shugerman has noted.) If the dual-sovereignty doctrine were tossed, as Hatch wants, then Trump’s pardon could theoretically protect Manafort from state action.
If Trump were to shut down the investigation or pardon his associates, “the escape hatch, then, is for cases to be farmed out or picked up by state-level attorneys general, who cannot be shut down by Trump and who generally—but with some existing limits—can charge state crimes even after a federal pardon,” explained Elie Honig, a former assistant U.S. attorney in New Jersey. “If Hatch gets his way, however, a federal pardon would essentially block a subsequent state-level prosecution.”
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But while Hatch has earned his bona fides in the arena of criminal-justice reform, the timing of his filing is nevertheless significant. For months, the Gamble case has been analyzed through the lens of the Mueller investigation, and Brett Kavanaugh, Trump’s nominee to replace retired Supreme Court Justice Anthony Kennedy, could be on the bench by the time the Court reconvenes this fall. The justices decided to hear the case one day after Kennedy announced his retirement.
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