A double jeopardy case set to be argued at the Supreme Court on Thursday has led to speculation about the impact a ruling could have on prosecutions stemming from special counsel Robert Mueller’s Russia investigation, including that of former Trump campaign chairman Paul Manafort.
But while some believe the outcome of the case could potentially prevent states from prosecuting Manafort under their own laws should he receive a pardon from President Trump, some legal experts say the sheer volume of state charges available makes it unlikely Manafort will walk free.
“As of where Manafort’s case is as of today, there are plenty of state charges that are still available for state prosecutors to bring against Manafort if he were to be pardoned,” Jed Shugerman, a law professor at Fordham University, told the Washington Examiner.
The case before the justices involves a challenge to the Supreme Court’s long-held exception to the Fifth Amendment’s double jeopardy clause. The clause says a person cannot “be subject for the same offence to be twice put in jeopardy of life or limb,” but the exception allows for a person to be prosecuted by a state and the federal government for the same conduct.
The man at the center of the dispute is Terance Gamble, who in 2015 was pulled over in Mobile, Ala., for a broken tail light. During the traffic stop, police smelled marijuana and, upon searching the vehicle, found the drug, a digital scale, and a 9-millimeter handgun, according to court filings.
Gamble was prosecuted by the state of Alabama for possessing the marijuana. But both the state and the federal government charged him with being a felon in possession of a firearm.
Gamble sought to have his federal charge thrown out, arguing his Fifth Amendment right had been violated.
But the federal district court ruled against Gamble, citing the Supreme Court’s “separate-sovereigns exception,” which states that because the states are separate sovereigns, a person can be prosecuted by a state and the federal government for the same offense.
The 11th U.S. Circuit Court of Appeals upheld the lower court’s ruling.
In June, the high court agreed to hear Gamble’s appeal of the lower court’s decision.
The case comes to the Supreme Court against the backdrop of special counsel Robert Mueller’s ongoing investigation into Russian interference in the 2016 election, which so far has led to guilty pleas from five former Trump associates, including Manafort.
Last week, however, federal prosecutors revealed in court filings that Manafort breached the terms of his plea agreement by lying to the FBI and special counsel’s office. As a result, members of Mueller’s team told a federal judge in Washington, D.C., on Friday, that they were considering new charges against Manafort.
Trump has frequently sought to discredit Mueller’s probe — calling it a “witch hunt” run by “angry Democrats” — which has led to questions about whether the president would pardon former associates like Manafort or members of his family.
During an interview with The New York Post on Wednesday, Trump said he wouldn’t take a pardon for Manafort “off the table.” Currently, Trump associates could still be charged under state law by state prosecutors even if they are charged with federal crimes and pardoned.
“In theory, if someone like Manafort is pardoned and then if Gamble overturns the dual sovereignty exception, then New York, for example, would be prohibited from prosecuting Manafort for any crimes that are the same crimes of the federal charges he’s already pleaded guilty to,” Randall Eliason, a law professor at George Washington University and a former assistant U.S. attorney for the District of Columbia, told the Washington Examiner.
If the Supreme Court did side with Gamble, Eliason said prohibiting the state and federal government from prosecuting a person for the same conduct could effectively expand the president’s pardon power.
“If by granting a federal pardon he can preclude a state prosecution, you’re giving him a pardon for state crimes as well,” he said of the president.
But Eliason contended that what could happen in theory differs from the reality.
“There are so many federal crimes now and so many state crimes that it’s not going to be all that often that things directly overlap so [that] the state would have no recourse left,” he said.
Still, Michael Conway, former counsel for the House Judiciary Committee in its impeachment inquiry of President Richard Nixon, said a ruling from the justices ending the Supreme Court’s double jeopardy exception could be a boon to Manafort.
“It would really give Manafort the Get Out of Jail Free card under both federal and state law if the Gamble opinion overruled all these precedents and said if you’ve been pardoned by one entity, you can’t be prosecuted by the other sovereign,” Conway told the Washington Examiner.
However, some states, such as New York and Virginia, already have laws on the books that provide broader double jeopardy protections.
Shugerman also noted that Mueller appears to have been strategic with the federal charges he has brought as part in his investigation.
“Mueller has been able to bring charges or make sure that guilty pleas were to a narrow set of charges and make sure to preserve a set of state charges,” he said. State prosecutors, he added, “have latitude to bring those charges.”
A decision from the justices in Gamble’s case is expected by the end of June.
