Donald Trump has a whole new problem
On Monday, June 17, the Supreme Court of the United States issued its decision in Gamble v. United States, a case that many in the Trump administration were watching closely. The issue to be decided by the Court was that of “dual sovereignty,” or whether a person could be prosecuted for the same crime by both state and federal prosecutors.
Donald Trump cannot be happy, because the Supreme Court ruled that it was refusing to overturn the longstanding dual sovereignty doctrine. Palmer Report readers might recall in the past year or so efforts by the New York Attorney General and State Legislature to amend its law to permit indictment by New York for crimes that had been charged at the federal level.
The decision was issued by Justice Samuel Alito, and all except Justices Ruth Bader Ginsburg and Neil Gorsuch were in the majority.
Paul Manafort and many others likely are not happy. What this means is that states can prosecute anyone who has been pardoned on federal charges, and the defendants such as Manafort cannot claim that they have been placed in double jeopardy for the same crime. The Court found that the Double Jeopardy Clause protects an individual from being “twice put in jeopardy” “for the same offense,” but an offense is defined by a specific law, so being charged by federal and state prosecutors does not violate the double jeopardy clause.
Last October, when the Brett Kavanaugh confirmation hearings were taking place, many were worried that Kavanaugh would side with Donald Trump in this and some other cases as a way of protecting him. But this has turned out not to be the case. This term, the Court is nothing if not unpredictable in how it aligns itself on a case-by-case basis. In the meantime, many in Donald Trump’s orbit might now be sweating, because Trump can’t get them off the hook by pardoning them.
Daniel is a lawyer writing and teaching about SCOTUS, and is the author of the book “The Chief Justices” about the SCOTUS as seen through the center seat.