Ginsburg and Gorsuch Demolished a Terrible Double Jeopardy Loophole, but SCOTUS Looks Poised to Uphold It

Elena Kagan, Ruth Bader Ginsburg, Neil Gorsuch, and Robert Mueller.
Photo illustration by Slate. Photos by Mandel Ngan/AFP/Getty Images; Alex Wong/Getty Images.

Gamble v. United States, which was argued before the Supreme Court on Thursday, has been touted as a potential problem for Robert Mueller’s investigation. It isn’t. The case poses, at most, a minor threat to the probe. By contrast, the doctrine at issue—which allows the federal and state governments to prosecute an individual for the same offense—poses a grave threat to the liberty of all Americans. With Gamble, the Supreme Court has a chance to limit prosecutorial overreach by revitalizing the Constitution’s bar against double jeopardy. Instead, a majority of the justices appear poised to affirm a loophole that never made any sense to begin with.

Gamble revolves around the meaning of the Fifth Amendment’s guarantee that no person may “be subject for the same offence to be twice put in jeopardy of life or limb.” This rule applies to both the federal government and each state government. Broadly speaking, it means that the government can’t retry you for the same offense. The Framers intended the Double Jeopardy Clause to prevent prosecutors from harassing defendants by trying them over and over again until they obtained a conviction or a punishment they consider appropriate.

But the Supreme Court has created an exception to this fundamental safeguard. Under the “dual sovereignty” doctrine, the federal government and a state government can prosecute a defendant for the exact same crime. The idea here is that the federal and state governments are separate sovereigns, and each has independent authority to prosecute criminal activity. This rule stands on shaky jurisprudential ground. It was first developed to punish people acquitted under state law for protecting fugitive slaves. In 1959, the court affirmed it in a sharply divided decision without identifying its basis in the text of the Constitution. Gamble is a direct challenge to the dubious doctrine, an opportunity for the court to re-evaluate its prior decision to carve a loophole in the Fifth Amendment.

The facts of the case illustrate the injustice of the current rule. In 2015, Alabama officers caught Terance Gamble, a convicted felon, carrying a gun. State prosecutors charged him under an Alabama law that forbids felons from possessing firearms, securing a one-year prison sentence. While state charges were pending, a U.S. attorney brought charges under a federal law that forbids felons from possessing firearms, based on the same 2015 incident. Gamble pleaded guilty and received a 46-month prison sentence. He is scheduled for release in February 2020, almost three years after he would’ve been released under the Alabama sentence alone.

Is that fair? Almost certainly not—indeed, it’s precisely the kind of arbitrary double prosecution the Framers warned against. Is it constitutional? Justice Ruth Bader Ginsburg doesn’t think so, nor does Justice Clarence Thomas. In 2016, the two justices issued a concurring opinion all but declaring that the court should overrule the dual sovereignty exception. And on Thursday, Ginsburg was the most active questioner on the bench, pummeling Assistant to the Solicitor General Eric Feigin with barbed queries.

“You have to concede, won’t you, that this rule, this separate sovereign rule, has been widely criticized by both academics and federal judges?” Ginsburg asked Feigin. (It has.) She also dinged Feigin for claiming that the exception somehow strengthens federalism, the division of power between the federal and state governments.

“Is there another case where federalism has been invoked to strengthen the hand of government?” Ginsburg asked. “Federalism is usually invoked because it’s a protection of the liberty of the individual, but here the party being strengthened is not the individual, it is the state’s freedom and the federal government’s freedom to prosecute the same offense.”

Here, Justice Neil Gorsuch jumped in for the layup.

“I had thought in this country that the people were the sovereign,” he told Feigin, “and that sovereignty was divided, exercise of sovereignty was divided, not multiplied. … It is awkward, isn’t it, to say that there are two sovereigns who get to multiply offenses against you? I can’t think of another case where federalism is used, as Justice Ginsburg indicated, to allow greater intrusions against the person, rather than to protect more against them.”

But Ginsburg and Gorsuch were the only two justices who seemed convinced that the dual sovereignty exception is constitutional codswallop. Everybody else—most notably, Justices Elena Kagan and Samuel Alito—were plainly hesitant to overrule precedent and invite the unforeseeable consequences of a new legal regime. Part of the problem is that Louis Chaiten, who represents Gamble, just didn’t do a very good job making his case. Chaiten’s brief fixates on treatises from the 17th and 18th centuries in an attempt to appeal to the court’s originalists. But for Kagan and Alito, that effort fell flat. At one point, Kagan scolded Chaiten about his argument’s shortcomings, telling him:

I’m a little bit … confused to why your argument seems, frankly, a little bit one note. You know, your brief and now your argument is just all about the original jurisdiction. And there are some people on this bench that think that that is the alpha and omega of every constitutional question. But there are other people on this bench who do not.

Kagan noted that the dual sovereignty exception has been around for 170 years and affirmed by 30 justices. And she told Chaiten that stare decisis—adherence to precedent—is a “kind of doctrine of humility where we say we are really uncomfortable throwing over 170-year-old rules that 30 justices have approved just because we think we can kind of do it better.”

Alito was equally blunt, repeatedly rebuking Chaiten for overstating his case. “I wonder,” he said, “whether you have perhaps exaggerated in saying there’s a mountain of support for your position.” After Chaiten tried to back up the claim with scraps of evidence, Alito scoffed: “So this is a mountain?”

When Kagan and Alito, the court’s best bullshit detectors, both think you’re full of it, you’re probably going to lose.

That outcome would be a relief to those who feared that Gamble could imperil Mueller’s Russia probe, but it shouldn’t be. Some legal commentators have worried that the abolition of the dual sovereignty doctrine would impede the investigation, bestowing Trump with a stack of get-out-of-jail-free cards. The theory goes like this: Right now, if Trump pardons his associates for their federal offenses, state prosecutors can still charge them for state crimes. Without the dual sovereignty rule, though, double jeopardy would prevent states from charging Trump’s cronies, since they would have already been tried and pardoned for an analogous federal offense.

As Teri Kanefield and Jed Shugerman explained in Slate, this concern is overhyped. Mueller obviously refrained from prosecuting Manafort et al. for the full battery of crimes they may have committed. Each instance of money laundering or tax fraud qualifies as a separate crime, and it’s highly doubtful that Mueller covered the waterfront with regard to the Trump clique’s criminal activity. By preserving certain charges, Mueller ensured that state prosecutors can bring fresh indictments in the case of a pardon—no matter how Gamble turns out. Indeed, the federal tax crimes at issue in the Manafort case have state law corollaries that are completely separate crimes.

Similarly, it’s improbable that Gamble could jeopardize the federal government’s ability to enforce Americans’ civil rights. The feds have occasionally stepped in to prosecute bias-motivated crimes when state juries deliver patently unjust acquittals; consider the successful federal retrial of Rodney King’s tormentors.* But federal civil rights laws define crimes differently from state statutes: What constitutes a murder under state law, for example, may qualify as unlawful deprivation of rights under federal law. Even without the dual sovereignty exception, then, federal prosecutors could continue to charge violent bigots and abusive cops for violating civil rights without running into a double jeopardy roadblock.

These issues, however, will likely remain theoretical for now. Gamble seems headed toward a 6–3 loss, with Ginsburg, Gorsuch, and Thomas voting to end the dual sovereignty exception, and every other justices sticking by it. The court is wary of overhauling double jeopardy jurisprudence, even if it has strayed far from the text and purpose of the Fifth Amendment. That’s unfortunate. A ruling against Gamble may make Robert Mueller’s job slightly easier. But it will also mean that the rest of us remain vulnerable to prosecutors whose zeal for incarceration outweighs their commitment to justice.

*Correction, Nov. 7, 2018: An earlier version of this article misstated that the 16th Street Baptist Church bombers were successfully prosecuted in federal court. They were prosecuted by a joint federal-state team in Alabama court.