The U.S. Supreme Court is set to hear a case on Thursday that some say could significantly strengthen the president’s power to pardon criminals.
Now with a distinct conservative tilt, the court is set to decide whether the state and federal governments can separately charge and try a suspect for the same crime.
The Case
At issue is Gamble v. United States, a likely soon-to-be landmark case that examines the Fifth Amendment of the U.S. Constitution, and in particular, its “double jeopardy clause,” which states that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” The plaintiff, Terrance Gamble, was pulled over by police in Alabama for a broken taillight in November 2015.
Gamble, who had been convicted of felony second-degree robbery in 2008, was found to have marijuana and a firearm in his possession and was subsequently arrested.
“Both state and federal prosecutors charged Gamble with the same offense—being a felon in possession of a firearm—based on the same incident, resulting in an extension of his prison sentence,” which was originally just one year but may now extend to February 2020, The Atlantic reported. “He has repeatedly appealed, arguing that the dual convictions violate the double-jeopardy clause.”
But lower appeals courts have upheld Gamble’s conviction with nods to the 150-year-old separate sovereigns doctrine, which holds that “the prohibition on double jeopardy does not prevent dual prosecution when the prosecutions are each by separate sovereigns,” like the federal and a state government or two separate state governments.
Gamble’s legal team and other critics of the doctrine say it has no basis in the text of the Constitution.
Moreover, Ilya Shapiro, a senior fellow at the Cato Institute, has argued that the exception was enacted during a time when there was a little overlap between federal and state laws in the U.S., which is no longer the case.
The Implications
But it isn’t just Gamble who will be affected by the Supreme Court’s Thursday decision. Some, like Michael Conway, have suggested that the verdict could have presidential implications.
According to Conway, who was counsel to the House Judiciary Committee during their investigation into former President Richard Nixon, if the justices hold that only the state or the federal government — not both — can bring each charge, thereby overruling the doctrine, the president would be able to pardon an individual at the federal level to prevent the state from bringing its own charges.
Conway and others — including the Congressional Research Service and the fact-checking website Snopes — are particularly worried about what this may mean for President Donald Trump and the current special counsel investigation into alleged collusion between the Kremlin and his 2016 campaign team. The probe’s head, Robert Mueller, is widely believed to be leaving to door open to circumventing Trump’s pardon power by charging Trump associates at the state level, but this method would be ineffective if the separate sovereigns doctrine is overturned.
But others, like Brianne Gorod, the chief counsel for the progressive Constitutional Accountability Center, argue that this indirect benefit is being overstated.
“As an initial matter, a pardon on federal charges would, if anything, only block state prosecutions for the ‘same offense,'” she noted, meaning that a state could hit a criminal with a similar charge, as long as it wasn’t exactly the same.
As such, it seems leftist concerns over the strengthening of the executive pardon power are overdramatic at best. The Supreme Court should rule based on the Constitution — not on the possible implications of their decisions.
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