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Why the Big Double Jeopardy Supreme Court Case Isn’t a Threat to the Mueller Probe

The upcoming Supreme Court case Gamble v. United States has fueled speculation that Republicans are pushing for a favorable outcome in order to free Trump to issue pardons of his associates without fear that they will face consequences from state prosecutors. While the case on the question of double jeopardy is an important one, there is no reason to worry that Gamble will jeopardize the Mueller probe.

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Gamble v. U.S. is not actually about the presidential pardon power. It is about the Fifth Amendment protection against double jeopardy and whether a defendant is safe from state prosecution after a completed federal prosecution, and vice versa. In theory, a Trump associate could plead guilty to a federal crime, receive a pardon, and Gamble could protect him from a state prosecution. In reality, special counsel Robert Mueller seems to have already strategized around this problem.

All such hypotheticals aside, though, double jeopardy is a real problem affecting the rights of ordinary citizens.

The facts of the case are straightforward: One day in 2015, Terance Martez Gamble was pulled over by a police officer in Mobile, Alabama, for a broken taillight. The officer discovered a gun in the car. The state of Alabama prosecuted Gamble for illegal possession of the firearm. He served a year in prison.

The federal government then charged Gamble with illegal possession of a firearm. The federal crime he was charged with was the exact same crime, arising from the same facts, for which he served a prison sentence.

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The Double Jeopardy Clause prohibits anyone from being prosecuted twice for substantially the same crime. The text is plain: “No person shall … be subject for the same offense to be twice put in jeopardy.” If the person is acquitted, the government cannot continually charge the same crime, hoping for a different outcome. Similarly, if a person is convicted, sentenced, and punished—as the case with Gamble—the government shouldn’t be allowed to rearrest, retry, and reincarcerate him for the same crime, which amounts to double punishment. Historically, though, the court has held that the doctrine of dual sovereignty allows state government and federal government to charge crimes that violate both state law and federal law. Gamble is a direct challenge to that precedent. Any change to this doctrine could hypothetically affect state prosecutors’ ability to charge those Trump associates who have already pleaded guilty to crimes but might be pardoned by the president to prevent them from talking. In reality, though, the Mueller investigation seems to have made itself safe on that front. Pardons were a significant problem for Mueller a few months ago, but not because of Gamble. The problem was that many of the relevant states where crimes were committed—for example, New York, Virginia, Pennsylvania, California—already had their own double jeopardy rules in place locally. Mueller would have already had to strategize his criminal charges and guilty pleas around those rules. For example, Mueller’s charges against former Trump campaign chairman Paul Manafort likely preserved many state prosecutions. By luck, more charges were still available even after his trial, thanks ironically to a lone hold-out juror. Those deadlocked charges left a mistrial that could theoretically be retried on the federal or state level without a double jeopardy problem, with or without Gamble. When Manafort pleaded guilty last month, Mueller seemed to leave the door open on many charges by state prosecutors. By now, Manafort has likely proffered whatever potentially incriminating information he has to Mueller’s grand jury under oath, and even if he tries to back out of cooperation, it is hard to unring that bell.

Former Trump attorney Michael Cohen and National Security Adviser Michael Flynn similarly face myriad state charges, even after they have pleaded guilty to a narrower set of federal crimes. Again, Gamble should not affect this.

Depending on the outcome of Gamble, though, there might still be reason for concern about obstructive pardons for lesser co-conspirators. That worry is that a minor associate could plead guilty to the only crime he committed, agree to a cooperation deal in exchange, but then receive a pardon and back away. Then there would be no remaining state charges and no leverage to re-establish cooperation.

But now that Mueller has so many major figures cooperating or facing a wide range of potential charges, the danger of pleas followed by leverage-removing pardons is probably inconsequential. The problem remains only for 1) conspirators who committed too small a number of crimes; 2) which would be covered by both federal and state law; and 3) are in states that do not have double jeopardy protections already, as in New York, etc.; and 4) are close enough to Trump or have such incriminating information beyond what Manafort, etc. have provided that Trump would finally use his pardon power to protect himself. That’s an unlikely combination.

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At this stage, Gamble will not help Manafort, Cohen, and Flynn, and it probably won’t help any significant cooperating witness.

Pardons aside, there are good reasons to be skeptical of how dual sovereignty was used in the Gamble case. It has become conventional wisdom on both sides of the aisle that overcriminalization and excessive prosecutorial power have led to our epidemic of mass incarceration. Even Republican Sen. Orrin Hatch filed an amicus brief taking the same position as the ACLU in this case. Hatch’s spokesman denied that his position had anything to do with the Mueller investigation but came from the work he had been doing “for years to address the problem of over-criminalization in our federal code” and that he wants the Supreme Court “to reconsider the rationale” for the doctrine “in light of the rapid expansion of both the scope and substance of modern federal criminal law.” Hatch made this state-rights critique for a long time and his arguments should be taken in good faith. ACLU legal director David Cole, meanwhile, explained that his organization’s position is that the dual sovereignty doctrine loophole should be closed for the standard reasons: because it is fundamentally unfair and contrary to the values underlying the Double Jeopardy Clause. To summarize, the reason that Hatch, as well as many civil liberties groups, is involved is that he is legitimately concerned with the principles at stake here. Various scholars have further argued that the doctrine should be abolished or modified in the interest of fairness. Others have argued that there are ways to prevent unfairness without entirely overturning the exception, for example, by having the defendant serve the sentences concurrently to reduce unfairness.

For his part, Cole acknowledged a chief concern with abolishing the doctrine: Will this hinder the ability of the Justice Department to prosecute civil rights violations if the state courts fail to do so? The ACLU suggests that the answer, in most cases, is no, because there would still be ways to bring such charges. Mueller seems to have found a way to make sure justice is done even with double jeopardy laws in place. These constitutional issues are complicated and need to be addressed.

The pardon problem, meanwhile, could be addressed specifically as an exception in the structural interests of justice, but it would make even more sense for courts to address pardons directly, rather than circuitously through underenforcing the Double Jeopardy Clause. Courts should find that self-serving pardons are a violation of the president’s oath to faithfully execute his office.

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In the Trump era, it is understandable to worry about obstruction, pardons, conspiracies, and immediate injustices that might lead us to increase the power of prosecutors like Mueller. But we should not let a current crisis blind us to a bigger problem in ordinary cases: prosecutorial overreach and mass incarceration. Expanding the protection against double jeopardy would be a small step towards addressing that long-term injustice.