If President Trump were to pardon Paul Manafort or other people who have been or may be indicted by Special Counsel Robert Mueller, prosecutors in New York or another state might respond by seeking indictments under state law. Would such a state prosecution be barred by the Constitution’s Double Jeopardy Clause? No, because there has long been a “separate sovereigns” exception to double jeopardy. Under that exception, a trial in federal court does not preclude a subsequent trial in state court for the same underlying conduct, nor vice-versa.
But what if the Supreme Court eliminates the separate sovereigns exception, as it was asked to do last week during the oral argument in Gamble v. United States? Might such a change in the law enable the president to immunize Manafort and other loyalists, and thus to protect himself from the Mueller investigation? Some observers have even suggested that Trump’s urgency in seeking the confirmation of now-Justice Kavanaugh was rooted in the president’s hope that Kavanaugh would cast a decisive vote for eliminating the separate sovereigns exception and thus for saving Trump’s hide.
Judging by the oral argument in Gamble, these concerns did not register at all with Kavanaugh or any of the other justices. The Court does not seem likely to eliminate the separate sovereigns exception. Moreover, even if the Court did overrule the exception, that would still leave plenty of room for a state prosecution of someone who received a pardon from Trump.
Nonetheless, the speculation about Gamble’s implications for the Mueller investigation provides a useful opportunity to think about how, if at all, the extraordinary nature of the Trump presidency should inform judicial decision making.
The Separate Sovereigns Exception and its Discontents
The Fifth Amendment’s Double Jeopardy Clause provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The paradigmatic example of a Double Jeopardy violation is an indictment of a person for the exact same alleged crime for which he or she was previously acquitted. But the Clause also applies in other circumstances. A guilty plea to a lesser included offense (manslaughter, say) will usually preclude a charge for the broader offense (murder, say) based on the same underlying conduct. In certain circumstances, even a mistrial will entail protection against retrial pursuant to the Double Jeopardy Clause.
What justifies the separate sovereigns exception? It can be understood as an interpretation of the term “offense” in the Fifth Amendment. As the Supreme Court explained in the 1852 case of Moore v. People, when a state prosecution follows a federal one for the same underlying conduct, “it cannot be truly averred that the offender has been twice punished for the same offense, but only that by one act he has committed two offenses, for each of which he is justly punishable.”
The Moore case is deeply problematic today, because the underlying offense was sheltering an African American who had escaped from slavery. However, its separate sovereigns principle has been long accepted and applied in less fraught cases. Thus, in 1959, the Court, speaking through Justice Felix Frankfurter in Bartkus v. Illinois, reiterated that the separate sovereigns exception expresses a straightforward principle of American federalism.
Despite its pedigree stretching back into the mid-19th century, civil libertarians and others dislike the separate sovereigns exception. It feels fundamentally unfair, at least in a garden-variety criminal case, for the federal government to prosecute someone who has been acquitted in state court or vice-versa. Accordingly, in a case involving the application of the Double Jeopardy Clause to Puerto Rico in 2016, the odd couple of Justices Ginsburg and Thomas joined together in a concurrence to suggest that the separate sovereigns exception should be eliminated or substantially narrowed. Citing Alexander Hamilton in Federalist No. 82, Ginsburg and Thomas opined that the federal and state governments together comprise a single system of justice for double jeopardy purposes. We can assume that Ginsburg and Thomas voted to hear the Gamble case; because it takes four votes to grant review in the Supreme Court, at least two other justices must also be interested in reconsidering the separate sovereigns exception.
Original Meaning and Stare Decisis
It is not always easy to discern a justice’s substantive view based on the questions he or she asks at oral argument. Subject to that caveat, it appears highly unlikely that either Justice Alito or Justice Kavanaugh will vote to overturn the separate sovereigns exception. They each asked skeptical questions emphasizing the importance of stare decisis. Justices Sotomayor and Kagan also displayed something of an if-it-ain’t-broke-don’t-fix-it attitude.
At the other end of the spectrum, Justice Ginsburg appeared quite sympathetic to overruling the separate sovereigns exception. Consistent with his nearly-constant practice, Justice Thomas asked no questions, but he can be presumed to be with Ginsburg based on the Puerto Rico case concurrence.
In the middle were Chief Justice Roberts and Justices Breyer and Gorsuch, each of whom had some hard questions for each side, but of the three, only Justice Gorsuch seemed to be genuinely flirting with abandoning separate sovereigns. If I had to bet, I would say the government will win either 7-2 or 6-3.
Based on the substance of the argument, that result seems about right. The lawyer for Mr. Gamble faces three main obstacles. First, as noted, is stare decisis. More than one justice indicated that a great many Supreme Court decisions might come out differently if re-examined from scratch, and so there is no great urgency to revisit separate sovereigns. At best, Gamble’s attorney was able to show that the key precedents establishing the exception were issued before the Supreme Court concluded that the Double Jeopardy Clause binds the states—via incorporation through the Fourteenth Amendment—rather than just binding the federal government. Yet this response was not wholly effective; in the earlier period it would have been possible to hold that double jeopardy protections apply when a federal prosecution follows but not when it precedes state prosecution; however, that possibility was never even considered in the earlier cases, suggesting that the pre-incorporation status of the earlier precedents was never the key to the separate sovereigns doctrine.
Second, Gamble’s lawyer did not have a very good answer to an objection posed by Justice Kagan. His argument relied on the original understanding, rooted in English practice before American independence. Yet that practice, as he described it, would lead to double jeopardy protection even where the initial prosecution occurred in a truly foreign court. Several justices were very concerned about the prospect of precluding trial in the US for acts of terrorism based on an acquittal or conviction and light sentence in a foreign court.
Third, several justices were also concerned about other practical implications. Although successive prosecutions under the separate sovereigns exception can be unfair, they can also serve vital interests in justice. For example, when state or local prosecution is inept or, worse, racially biased, federal prosecution following a tepid state prosecution vindicates important national interests. Although Gamble’s lawyer tried to carve out narrower exceptions that would still allow such successive prosecutions in the event that the Court were to eliminate the broader separate sovereigns exception, he did not appear to persuade a majority of the justices that such an approach was worth destabilizing the law.
Trump’s Shadow Over the Case
And yet, we know that at least four justices think there was enough to the argument for eliminating the separate sovereigns exception to warrant agreeing to hear the case. If it is close, will the justices give any consideration to the potential impact on the Mueller investigation?
There does not appear to be any pressing reason for doing so. For one thing, even without the separate sovereigns exception, state prosecutions could proceed for substantially different conduct. Consider an extreme example. Suppose Trump were to pardon Jared Kushner for all federal crimes he may have committed. Even so, that would not give Kushner double jeopardy protection against prosecution for, say, evading New York taxes by filing a fraudulent return with the state. Even under the most generous reading of the double jeopardy right, it does not protect against prosecutions for substantially different conduct.
Moreover, even with respect to conduct that does overlap sufficiently to fall within the usual protection of the Double Jeopardy Clause, it is not clear that “jeopardy attaches” (to use the technical phrasing) when someone receives a pardon. Just as elimination of the separate sovereigns exception in general could be coupled with a carve-out for some class of civil rights cases, so it could include a carve-out for state prosecutions following a pardon.
Whether there should be a pardon exception in a regime with no general separate sovereigns exception poses a somewhat harder question. If the White House were not currently occupied by a monster, we would have good reason to think that in a world without a separate sovereigns exception, a federal pardon of a federal official should immunize its recipient against subsequent state as well as federal prosecution. Indeed, in such a world, we might worry about state prosecutions of a president or other high-ranking federal officials even apart from questions of double jeopardy and the pardon power. In normal times, state prosecution of high-ranking federal officials—even after they are out of office—could undermine the supremacy of federal law and the federal government. Imagine a 1960s prosecution in state court in the Deep South of federal officials in retaliation for their enforcement of federal civil rights laws.
To be sure, various immunity doctrines and the possibility of removal of certain cases to federal court mitigate the risk posed by such cases. And I do not mean to take a position on any particular real or hypothetical case. My main point here is that if jurists are to consider the legality of state prosecutions of federal officials in formulating general rules of law, they should be mindful of the fact that Trump will not always be president.
In a provocative 1985 article in the Columbia Law Review, Professor Vincent Blasi advocated what he called the “pathological perspective” in First Amendment cases. Freedom of speech, press, and assembly, Blasi argued, should protect basic democratic liberties against repressive excesses in periods of exaggerated crisis (such as the McCarthy era). Thus, even in normal times, courts ought to construe the First Amendment by thinking about what government might attempt in darker times.
Blasi’s advice makes sense, but so does its mirror image. Judges construing the Constitution and other legal texts in perilous times (like our own) should keep in mind that the rules they adopt will also operate in normal times. If a proposed rule of law would empower Alabama to undercut federal civil rights enforcement, then perhaps it should be avoided, even if it would also empower New York to rein in Donald Trump.
Fortunately, the oral argument in Gamble gives no indication that the justices will use the case as a vehicle for constraining or empowering state criminal prosecution of Trump, his business, or his associates. But should the temptation arise in a future case, the Court would do well to keep in mind what we might call the “anti-pathological perspective.”