Justices seem hesitant to bar feds, state from prosecuting individual for same crime

December 6, 2018

Some of President Trump’s opponents had warned a case before the Supreme Court could expand his pardon powers to protect political allies but the justices avoided that issue during oral argument Thursday.

They focused instead on longstanding precedent and constitutional rights over “double jeopardy,” or whether a defendant can be charged for the same crime twice, in this case in both federal and state courts.

Justices from both sides of the ideological divide appeared skeptical of overturning decades of legal doctrine that’s said the federal and state governments are “dual sovereigns,” and can each bring charges if they want.

“This is a 170-year-old rule,” Justice Elena Kagan said.

The case involves a two-time felon nabbed on gun charges, and both Alabama and the federal government charged him for the violation.

He said that amounts to double jeopardy, and he asked the justices to cancel the separate sovereigns doctrine the high court has espoused since the middle of the 19th Century.

“There is an ancient rule not to be tried twice for the same crime,” said Louis A. Chaiten, Gamble’s lawyer, told the court.

The federal government, though, argued it’s allowed under what’s known as the separate sovereigns exception, which the justices in earlier cases have ruled as valid.

“I can point to a lot of practical problems that could develop,” said Eric J. Feigin, the Justice Department’s attorney.

He added the federal government would want to maintain an interest in the regulation of firearms, and not leave that only to the states.

Justice Brett M. Kavanaugh, the newest member of the high court, suggested the felon must show an “egregious wrong” in encouraging the court to undo centuries of its legal work.

And Justice Stephen G. Breyer appeared worried about what would happen to civil rights prosecutions, typically brought by the feds, if the court were to rule for Gamble.

He wondered how far back the courts could go in overturning precedent, pointing to an early founding-era ruling that helped solidify the courts’ claims to final constitutional say over laws.

“Maybe Marbury v. Madison was wrong?” Justice Breyer said. “Look at the doors we are opening up.”

Some legal analysts said if the justices did overturn the doctrine and rule that only one set of charges can be brought, it would mean Mr. Trump could pardon his allies from federal prosecutions from matters being probed by the special counsel’s office. That would effectively shut out the chance that states could bring their own charges.

Others dismiss those fears, and pleaded with the justices to protect individuals from being punished twice for the same crime, pointing to an exploding federal criminal code that creates more chances for double jeopardy.

But Mr. Trump and any potential pardons stemming from the special counsel’s probe didn’t come up when the two sides sparred during oral arguments Thursday.

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