Big Double Jeopardy case in Supreme Court this week

It’s Gamble v. U.S. and it comes out of the 11th Circuit (a 3-page unpublished opinion!). The issue is whether the Court should overrule the “separate sovereigns” exception to the Double Jeopardy Clause.

The separate sovereign doctrine — that different sovereigns, like the state and the feds could prosecute someone for the same crime — has bothered me for a long time and really makes no sense.

As usual, SCOTUSblog has lots of background and coverage.  Here is some summary of the arguments:

In the Supreme Court, the federal government insists that the separate sovereigns doctrine should remain in place. The text of the double jeopardy clause bars successive prosecution and punishment for the same offense, the government emphasizes, not for the same conduct. And when it uses the term “offence,” the government continues, the double jeopardy clause is referring to the violation of a law. The same conduct can violate two different sovereigns’ laws and constitute two different offenses, which each sovereign can then punish and prosecute separately. If the Framers had wanted the clause to apply more broadly, the government adds, they would have used the term “conduct” or “acts” rather than “offence.”

Gamble offers a very different interpretation of the text, telling the justices that nothing in the text points to any exceptions to the double jeopardy clause. Instead, he stresses, the text of the clause bars prosecution of the “same offence,” without suggesting that two prosecutions for the same offense would be acceptable as long as they are prosecuted by two separate sovereigns. To the contrary, Gamble observes, Congress considered but rejected an exception that would have allowed the federal government to prosecute a defendant even after he’d been convicted for the same offense under state law.

Gamble contends that the separate sovereigns doctrine is also inconsistent with the purpose of the double jeopardy clause. Permitting two consecutive prosecutions for the same conduct on the ground that prosecutions are brought by two different sovereigns, Gamble argues, “hardly serves the deeply rooted principles of finality and fairness the Clause was designed to protect,” particularly when it would still require two trials and could potentially lead to double punishments.

Gamble tells the justices that the principle of adhering to prior decisions – known as stare decisis – should not stand in way of overruling the separate sovereigns doctrine. First, he says, the doctrine “has long been questioned by members of this Court, lower-court jurists, and legal scholars” – including by both Justice Ruth Bader Ginsburg and Justice Clarence Thomas.

There has been lots of media coverage of the case because of what it might mean for a Mueller pardon and for a prosecution of Trump. Here’s the WAPO on the case:

But likely to be watching the proceedings closely will be those concerned about a big-time felon, Republican consultant and former Trump campaign chairman Paul Manafort, who was prosecuted by special counsel Robert S. Mueller III for tax fraud.

With President Trump keeping alive prospects that he might pardon Manafort, Gamble v. United States might be redubbed Manafort v. Mueller, joked Thomas C. Goldstein, an attorney who regularly argues before the Supreme Court.

The outcome in the case could affect nascent plans by states to prosecute Manafort under their own tax evasion laws — New York, in particular, has expressed interest — should Trump pardon Manafort on his federal convictions.