Justices seem reluctant to make changes to double jeopardy clause

Supreme Court justices on Thursday appeared reluctant to overrule a 170-year-old precedent that allows someone to be prosecuted for the same crime if the charges are brought separately by both federal and state governments.

Justices at each end the court’s ideological spectrum seemed concerned that getting rid of the separate sovereigns exception to double jeopardy would prevent the U.S. government from prosecuting someone who’s already been tried in a foreign country.


The case is being closely watched for its potential impact on President TrumpDonald John Trump Former US ambassador: 'Denmark is not a big fan of Donald Trump and his politics' Senate Democrats push for arms control language in defense policy bill Detroit county sheriff endorses Booker for president MORE’s former campaign chairman Paul ManafortPaul John ManafortTrial of ex-Obama White House counsel suddenly postponed Top Mueller probe prosecutor to join Georgetown Law as lecturer DOJ releases notes from official Bruce Ohr's Russia probe interviews MORE, who many believe is angling for a presidential pardon from a host of federal bank and tax fraud charges he was convicted of and separate conspiracy charges he pleaded guilty to.

With or without a pardon, Manafort could still be prosecuted in New York if the state chooses to pursue charges under the Supreme Court’s current reading of the law.

The case before the Supreme Court on Thursday centers on Terance Gamble, an Alabama man who was caught with marijuana and a loaded handgun in his car during a traffic stop in 2015, seven years after having been convicted of second-degree robbery — a felony offense.

While the state was prosecuting him for being a felon in possession of a firearm, the federal government charged him for the same offense, according to court documents.

Gamble argues that the federal prosecution, which landed him an additional three years in prison, violated his Fifth Amendment right not to be tried twice for the same crime.

But the federal government argued the Supreme Court has held that prosecution in federal and state court for the same crime does not violate the double jeopardy clause because the state and federal government are separate sovereigns.

Some of the justices said they are bound by what's known as stare decisis, a legal principle which requires justices to adhere to previous rulings.

"Part of what stare decisis is, is a kind of doctrine of humility where we are really uncomfortable throwing away over a 170-year-old rule that 30 justices have approved just because we think we can kind of do it better,” Justice Elena Kagan, an Obama appointee, said during oral arguments.

Justice Brett KavanaughBrett Michael KavanaughCollins downplays 2020 threat: 'Confident' re-election would go well if she runs The exhaustion of Democrats' anti-Trump delusions Lewandowski on potential NH Senate run: If I run, 'I'm going to win' MORE, a Trump appointee, said dismissing the precedent could significantly hamper national security efforts.

Eric Feigin, assistant to the solicitor general, said successive prosecutions are often inappropriate and reserved only for instances when the federal government’s interest hasn’t been vindicated.

Chief Justice John Roberts noted that the Department of Justice (DOJ) has a policy restricting charges that have already been brought by a state. 

“You must think that there's some problem or you wouldn't have the Petite policy,” he said.

Gamble’s attorney, Louis Chaiten, focused the bulk of his arguments on the text and original meaning of the double jeopardy clause, arguing the separate sovereigns exception is unconstitutional within its original meaning.

But Kagan said not everyone on the court thinks originalism “is the alpha and omega of every constitutional question."

“This is your opportunity to give me more,” she told Chaiten.

Justice Samuel Alito pressed Chaiten on his main argument that a court in one jurisdiction can’t prosecute someone who’s already been tried in another.

“Let's say a group of American tourists are murdered by terrorists in a foreign country, and there is a prosecution in the foreign country for murder, the same offense in a court of competent jurisdiction there, and it's not a sham prosecution, but it's a fairly inept prosecution … and it results in an acquittal or a conviction with a very light sentence,” he said. “And your position is that there could not be a prosecution here in the United States under the statute enacted by Congress to permit the prosecution of individuals who murder Americans abroad?”

Gamble, who is scheduled to be released from federal prison Feb. 16, 2020, is appealing the 11th Circuit Court of Appeals’s decision to affirm the district court’s refusal to dismiss the federal charges against him on double jeopardy grounds.

The court was initially scheduled to hear arguments in the case Wednesday, but the proceedings were postposed for the National Day of Mourning in honor of former President George H.W. Bush, who died Friday at age 94.

A decision in the case is expected by the end of June.

Updated at 2:06 p.m.