Supreme Court justices seemed reluctant to give criminal defendants a stronger shield against multiple federal and state prosecutions, hearing a case with implications for the reach of President Donald Trump’s pardon power.
In their last argument before a monthlong holiday recess, the justices debated whether to overturn the decades-old “separate sovereigns” doctrine, which lets a state and the U.S. government press separate prosecutions involving the same conduct. The doctrine is an exception to the constitutional ban on double jeopardy.
Elimination of the separate-sovereigns rule would mean that a presidential pardon might block some state charges as well. Trump has said he won’t rule out a pardon for Paul Manafort, his former campaign chairman who was convicted of federal fraud charges and pleaded guilty to other crimes.
But Thursday’s argument suggested at least five justices weren’t willing to take that step. The group included Justice Stephen Breyer, who said the court had repeatedly upheld the separate-sovereigns doctrine, and Brett Kavanaugh, who said the court should overturn precedents only when they are “grievously wrong.” The subject of presidential pardons didn’t come up during the 80-minute session.
The case before the court involves Terance Gamble, who says his constitutional rights were violated when he was charged under both Alabama and federal law for possessing a gun as a convicted felon. He pleaded guilty to the state charges, then sought to have his federal indictment dismissed.
The Constitution’s Fifth Amendment says that no one shall “be subject for the same offence to be twice put in jeopardy of life or limb.” The separate-sovereigns doctrine is an exception to that rule, dating back the mid-19th century.
In recent decades, federal prosecutors have invoked the separate-sovereigns doctrine to press civil rights charges against people who have already faced state criminal charges. In 1993, a federal jury found two Los Angeles police officers guilty in the beating of Rodney King even though they had already been acquitted of state charges.
An unlikely duo of justices — Ruth Bader Ginsburg and Clarence Thomas — said in 2016 the doctrine deserved “fresh examination.”
Writing for the pair, Ginsburg said the double jeopardy clause “is intended to shield individuals from the harassment of multiple prosecutions for the same misconduct.” The separate-sovereigns doctrine “hardly serves that objective,” she said.
The case, which the court will decide by June, is Gamble v. United States, 17-646.