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Thu Dec 6, 2018, 03:56 PM

Gamble v. U.S.: Majority appears ready to uphold "separate sovereigns" doctrine

Thursday round-up
By Edith Roberts on Dec 6, 2018 at 7:20 am

This morning the Supreme Court rounds out its December sitting with an oral argument in Gamble v. United States, which asks whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause that allows a defendant to be prosecuted for the same crime in both federal and state court. Amy Howe had this blog’s preview, which was first published at Howe on the Court. Garion Liberti and Tayler Woelcke preview the case at Cornell Law School’s Legal Information Institute. Nina Totenberg reports for NPR that “[t]he case has attracted extra attention because of President Trump’s comments that he could possibly pardon his onetime campaign chairman Paul Manafort and other Trump associates who have been — or could be — convicted in prosecutions brought by [Special Counsel Robert] Mueller.” At Bloomberg Law, Jordan Rubin reports that “the extent to which a decision in Gamble’s favor would actually benefit any Trump associates is far from certain.” Additional coverage comes from Steven Mazie at The Economist’s Democracy in America blog and Bill Lucia at Route Fifty.

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Amy Howe Independent Contractor and Reporter

Posted Thu, December 6th, 2018 2:20 pm

Argument analysis: Majority appears ready to uphold “separate sovereigns” doctrine

When Terance Gamble was pulled over by police in Alabama three years ago for having a faulty headlight, he probably didn’t think that prosecutors would make a federal case out of it. And he certainly wouldn’t have imagined that his case would make national headlines – not so much for its own sake, but because of what a win for Gamble might mean for prosecutions arising from Special Counsel Robert Mueller’s investigation into possible Russian interference in the 2016 election. Both of these things did happen, but after nearly 80 minutes of oral argument this morning, Gamble seemed unlikely to prevail on his argument that the federal charges against him violate the Constitution’s double jeopardy clause, which would in turn preserve the ability of state prosecutors to bring charges against defendants in the Mueller investigation even if they receive pardons from President Donald Trump for any federal charges brought against them.

Louis A. Chaiten at lectern for petitioner (Art Lien)

When the police officer who had stopped Gamble searched Gamble’s car, he found two bags of marijuana, a digital scale and a handgun. Gamble was charged with violating state drug laws, but he was also charged under both state and federal laws with being a felon in possession of a firearm. After he was sentenced to one year in state prison, Gamble argued that prosecuting him on the federal firearm charge would violate the Constitution’s double jeopardy clause, which guarantees that no one shall “be twice put in jeopardy” “for the same offence.” The lower courts rejected that claim, relying on what is known as the “separate sovereigns” doctrine – the idea, based on longstanding Supreme Court rulings, that state and federal governments are two different sovereigns and therefore can both prosecute someone for the same conduct without infringing on the double jeopardy clause.

Gamble then went to the Supreme Court, which agreed to weigh in earlier this year. Its decision to grant review means that there were at least four votes to take up the case, but after today’s argument it is hard to see how Gamble could get five votes to overturn the separate sovereigns doctrine. Arguing for Gamble, lawyer Louis Chaiten began by telling the court that the separate sovereigns doctrine is inconsistent with the text and original meaning of the double jeopardy clause, and he pointed to what he described as a “mountain of affirmative evidence” that, in the years before the drafting of the U.S. Constitution, courts in England would not have allowed successive prosecutions.

This post was originally published at Howe on the Court.

Posted in Gamble v. U.S., Featured, Merits Cases

Recommended Citation: Amy Howe, Argument analysis: Majority appears ready to uphold “separate sovereigns” doctrine, SCOTUSblog (Dec. 6, 2018, 2:20 PM), http://www.scotusblog.com/2018/12/argument-analysis-majority-appears-ready-to-uphold-separate-sovereigns-doctrine/

Here's my early October lawsplainer (in the context of the Kavanaugh hearings) about why Gamble v. U.S., the double jeopardy case before the Supreme Court today, isn't the OMG-TRUMP-WILL-GET-AWAY-WITH-IT catastrophe people are suggesting.

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Reply Gamble v. U.S.: Majority appears ready to uphold "separate sovereigns" doctrine (Original post)
mahatmakanejeeves Dec 2018 OP
Voltaire2 Dec 2018 #1

Response to mahatmakanejeeves (Original post)

Thu Dec 6, 2018, 04:10 PM

1. Despite how the corrupt shit-gibbon

might benefit, this would be a good reform.

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