Double Jeopardy Case Heard By Supreme Court Could Have Implications For Mueller

14 hours ago
Originally published on December 6, 2018 3:05 pm
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MARY LOUISE KELLY, HOST:

Now, what do a small-time Alabama felon and a big-time prosecutor like Robert Mueller have in common? Well, a case brought by the felon and heard by the Supreme Court today could have implications for Mueller's investigation of President Trump and his associates. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: Front and center in today's case is Terance Gamble. Seven years after he was convicted of robbery, Alabama charged him with violating a state law barring convicted felons from having a gun, and he was sentenced to a year in prison. But the federal government also charged him with illegal gun possession under federal law, and he was sentenced to three more years for the same crime. He claims that violates the Constitution's ban on subjecting a person to prosecution twice for the same offense.

But the federal government and most of the states point to longstanding Supreme Court precedents that allow separate sovereign governments, state and federal, to bring separate prosecutions for the same offense because their laws and their interests are different. And that brings us to the Mueller investigation. Erwin Chemerinsky, dean of the law school at the University of California, Berkeley, explains it this way.

ERWIN CHEMERINSKY: Underlying this case is the concern that if Donald Trump should issue pardons to people like Paul Manafort, would they still be able to be prosecuted in state court?

TOTENBERG: Such dual prosecutions, however, seemed on pretty firm ground after today's argument. At least five of the nine justices clearly expressed doubts about overruling the separate sovereigns rule. Only Justice Ginsburg openly criticized what she called its double whammy. But the argument did provide for a fascinating discussion of the role of precedent in Supreme Court decision-making. Hint - think Roe v. Wade or decisions upholding affirmative action in higher education.

Representing the Alabama defendant, lawyer Louis Chaiten said the text of the Constitution and the original understanding of the founders was that a person could not be tried twice for the same crime even if the first prosecution was in another country. Justice Alito - so let's say a group of American tourists are murdered by terrorists in a foreign country, and the terrorists are prosecuted in that country. It's not a sham prosecution, but an inept one. They're acquitted or get a light sentence. You're saying they could not be prosecuted in the United States afterwards?

Justice Kavanaugh - if a federal prosecution is part of the national security efforts of the United States, then your position would substantially hamper those efforts. Justice Kagan - the rule that we respect precedent, part of that, she said, is a kind of judicial humility where we say we're really uncomfortable throwing over a 170-year-old rule that 30 justices have approved just because we think we can do it better.

Justice Breyer - suppose you're right, and the dual sovereigns rule is wrong. Maybe other foundational decisions in our legal system are wrong. Maybe Marbury v. Madison was wrong. Look at the door we're opening up. Justice Gorsuch - even assuming we were wrong on this, of all the errors this court has made over the years, why this one? Why should we care about this one?

Defending the status quo today was Assistant Solicitor General Eric Feigin. He said there would be dire practical consequences if the court were to do away with the separate sovereigns rule. Justice Gorsuch - with the proliferation of federal crimes, shouldn't we be worried about the opportunity for the government to prosecute a second time whenever its unhappy about the result in a state case? In the past, we've relied on assurances that this would not be used in routine cases. But this case, at least to some eyes, looks pretty routine.

Lawyer Feigin pointed to the Justice Department policy that allows such second prosecutions in a relatively small number of cases, about 100 a year, he estimated. But possession of a large amount of marijuana is only a misdemeanor in California, he observed, while it's a federal felony. And an assault may look like just an assault to state authorities, but it may be part of an organized crime case for federal authorities.

As to Gamble's case, the gun case before the court, he said, the federal government got involved because the defendant got a very light jail term even though he used the gun to repeatedly terrorize his family. Nina Totenberg, NPR News, Washington.

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