Majority Appears Ready To Uphold “Separate Sovereigns” Doctrine

from SCOTUSblog

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.

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One Response to Majority Appears Ready To Uphold “Separate Sovereigns” Doctrine

  1. Yash Wagle December 7, 2018 at 5:47 pm #

    I found this article to be fascinating. The article discusses the current Supreme Court case Gamble v. The United States. Although this case is seemingly unrelated to the Mueller investigation we see that the Gamble v. U.S decision could impact Mueller’s investigation of Russian collusion in the 2016 election. These two widely different circumstances are connected by the two conflicting legal concepts that are being brought up in the Gamble case.
    Gamble (Petitioner in the case) was arrested three years ago for possession of a firearm while being a felon. Gamble’s possession of the firearm violated both state and federal laws. Gamble was already charged, prosecuted, and sentenced to 1 year in prison by the state of Alabama, where the arrest occurred. The issue the Supreme Court looks to solve is regarding the right for Gamble to once again be prosecuted by the federal government for the same firearm violation. Gamble’s defense argues that federal prosecution would be unlawful, and would violate the Constitution’s 5th amendment double jeopardy clause. This clause basically states that no person shall be prosecuted for the same crime twice. The argument against Gamble is that of the “Separate Sovereigns” doctrine. This set of beliefs was actually put forth by the Supreme Court over 170 years ago. The doctrine basically believes the state and federal government to be sovereigns, giving them the ability to prosecute separately for the same crime. It is therefore understood that a criminal offense that violates both state and federal laws can be prosecuted twice, effectively bypassing double jeopardy.
    Over the 170 years the principle of separate sovereigns has routinely been upheld by courts. From the information from this article it seems that the Supreme Court justices will uphold this doctrine once again. 5 of the 8 justices seem to see substantial reasons as to why the idea of separate sovereigns is still necessary. Justices Alito and Kavanaugh have even brought up hypothetical cases that would occur if separate sovereigns didn’t exist. The hypothetical case ventures to show how the court would act if terrorists murdered an American tourist in a foreign country, and were acquitted there. With the absence of separate sovereigns in this hypothetical case the U.S would possibly not be able to prosecute the terrorist if they were acquitted in another land. Justice Kagan was also very concerned about how overturning this doctrine would conflict with precedence, and stare decicis.
    The connection between Gamble v. U.S , and the Mueller investigation comes about in the potential scenario President Trump pardons the members of his group who helped collude with the Russians in the 2016 election. Under that scenario the absence of separate sovereigns would allow Trump’s associates to go scot-free, and would even let them escape prosecution by the state courts. With the separate sovereigns doctrine, even if Trump pardons his associates they could still potentially be prosecuted for the same crime in state courts. By being prosecuted in state courts Trump does not have the ability to control his associate’s fate via presidential pardon.
    I myself am very confused and conflicted with the separate sovereign’s doctrine, and its ability to bypass double jeopardy. I definitely see how the absence of separate sovereigns would be concerning, especially in the potential scenario Trump pardons his associates. However, I am also concerned of how such a doctrine came into being. The Supreme Court’s position according to the separation of powers is to hold the other two branches to the standards put forth by the Constitution. By accepting the separate sovereign’s doctrine/belief the Court in my opinion bypasses the Constitution. Also from by brief understanding of the separate sovereigns doctrine it seems that such a doctrine was not created through any type of legislation. Instead, separate sovereign’s doctrine came as a result from numerous Supreme Court cases. In my opinion this is also concerning. I view the court establishing this “doctrine” as creating a law, something that is not in their power. Still, it will be very interesting to see how the Supreme Court decides this case.

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