The Supreme Court on Thursday wrestled with whether it should end a long-held doctrine allowing a state and the federal government to prosecute a person for the same conduct, a case that could have implications for special counsel Robert Mueller’s investigation.
The issue in the dispute between Terance Gamble, of Alabama, and the federal government is whether the justices should overturn the so-called separate sovereigns doctrine, which subjects people to prosecution from both states and the federal government for the same crime. That doctrine is an exception to the Fifth Amendment’s double jeopardy clause, which says no one can be “subject for the same offense to be twice put in jeopardy of life and limb.”
[Read: Paul Manafort may not be saved by Supreme Court ruling against ‘double jeopardy’]
During the 80-minute long oral argument, several justices raised questions about overturning such a long-held rule, suggesting a majority of the court may be in favor of leaving the exception to the double jeopardy clause in place.
Stare decisis, Justice Elena Kagan said, 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.”
“Look at the door we’re opening up,” Justice Stephen Breyer told Louis Chaiten, who argued the case on behalf of Gamble.
Justice Brett Kavanaugh added that the bar for overturning precedent is “not just to show its wrong, but to show that it’s grievously wrong.”
“Can you clear that bar?” Kavanaugh asked Chaiten.
A decision from the justices is likely to cut across ideological lines, as Justices Ruth Bader Ginsburg and Clarence Thomas have in the past urged the court to take a fresh look at whether the state and federal government can prosecute a person for the same offense.
Ginsburg told Eric Feigin, who argued the case for the Justice Department, that the rule “has been widely criticized by both academics and federal judges.”
Chief Justice John Roberts appeared equally skeptical of both sides. He first wondered if ending successive prosecutions by the state and federal government would lead to a “race to the courthouse” to see who could empanel a jury first.
But he later said it’s likely that if the court were to side with Gamble, state and federal prosecutors would sit down a develop a way of coordinating.
Justice Neil Gorsuch noted the possibility of the “proliferation of federal crimes” and suggested that may be a reason for the court to look again at the doctrine.”
The case before the justices dates back to 2015, when Gamble was pulled over for a broken tail light. Police smelled marijuana in the car and upon conducting a search, found two baggies of the drug, a digital scale, and 9-millimeter handgun.
Gamble was prosecuted by the state for possession of marijuana. Alabama and the federal government, however, charged him with being a felon in possession of a firearm.
Gamble sought to have his federal charge thrown out. But both the federal district court and the 11th U.S. Circuit Court of Appeals ruled against Gamble, citing the Supreme Court’s long-held doctrine allowing for successive prosecutions.
The case has been closely watched against the backdrop of special counsel Robert Mueller’s investigation into Russian meddling in the 2016 election.
Mueller has already secured guilty pleas from five of President Trump’s former associates, including his former campaign chairman Paul Manafort, and more prosecutions stemming from the probe may be forthcoming.
Trump’s frequent comments discrediting Mueller’s probe have led some to suggest he would pardon associates like Manafort or members of his family if they were charged in the investigation. Ending the separate sovereigns doctrine, some legal experts say, could preclude states from prosecuting those charged in Mueller’s probe under their own laws if the federal government acted.
A decision from the justices is expected by the end of June.
