Constitutional Law

The Court Is Not Gambling With Mueller

Gamble v. United States is a very interesting case, just not for the reasons you might have heard.

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Robert Mueller (Photo by Alex Wong/Getty Images)

There is a consistent but factually inaccurate narrative in the media recently that a double jeopardy case heard last week before the Supreme Court could potentially have a major impact on the Mueller investigation. The case, Gamble v. United States, asks the Supreme Court to determine whether double jeopardy prevents a state and the federal government from prosecuting citizens separately for crimes relating to one incident.

The case arises after the Petitioner Gamble was pulled over in Alabama and police discovered cannabis and a gun. In an all too common practice, Alabama prosecuted Gamble for the drug violation while the federal government charged him for being a felon in possession of a firearm. In this way, Gamble’s time behind bars was maximized to the greatest extent possible than if he were charged just by the feds or state alone. Gamble is arguing the Fifth Amendment’s prohibition against subjecting any person “for the same offence to be twice put in jeopardy of life and limb” prevents charging him separately in this way.

The significant problem for Gamble however is the Court has held for 170 years that a “separate sovereigns” or “dual sovereignty” exception applies to the Fifth Amendment’s double jeopardy prohibition. The reasoning behind the exception is that both the state and federal government can have separate interests in punishing the same incident and it appears unlikely the Court will overturn this lengthy precedent.

Gamble’s best hope is a textual argument (meaning the text of the Fifth Amendment makes no specific mention of a “separate sovereign” exception), as it would appeal to the newly appointed “textualists” on the Court. Indeed, during oral arguments Justice Gorsuch stated the exception appears to conflict with the plain meaning of the Fifth Amendment’s protection against government intrusion by allowing a great deal of extra intrusion.

The text of the Fifth Amendment is however, is specific to dual punishment for the same crime. Under the Court’s rule, if each charge requires proof of an element the other does not, they are not the same crime. Here, Gamble was charged at the state level on drug laws and at the federal level for being a felon in possession of a weapon. These two charges have completely different interests with two very different elements of proof. There does exist some very interesting arguments for reform to the “separate sovereigns” doctrine that would not require an abolishment of the exception and I believe the Court will try to strike a similar balance.

Although likely legal, if you are a civil liberty nut like me, when you examine the application of the “separate sovereign” exception you rather quickly begin to despise it. Its broad application in cases like Gamble’s is one of the primary reasons why we have such mass incarceration in this country. Moreover, an ever increasing federal criminal code has started to conflict with the principles of federalism. This combination of civil liberty issues is how you get Senators like Orin Hatch filing an amicus brief alongside the ACLU calling for the abolishment of the “separate sovereigns” exception.

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For some of the most staunch criminal justice reformers however, abolishment of the “separate sovereigns” doctrine is a cause for concern. The fear of eliminating the exception revolves around protecting the Mueller investigation. The theory goes that if the president pardons his cronies convicted under the Mueller investigation for federal crimes, the inability to utilize state prosecutions under the “separate sovereign” exception will eliminate the leverage necessary for continued cooperation. In other words, for some, eliminating the exception would aid the president’s ability to escape justice. This theory has been so thoroughly debunked time and time again that it is a wonder to me why so many intelligent people keep maintaining it as a legitimate concern.

The likely reason for all the stubborn hyperbole regarding the implications of the Gamble case to the Mueller investigation is this president has made the concern over treason/collusion uncomfortably real and it makes people understandably jumpy. Nevertheless, overcriminalization and overzealous prosecutions are a real problem where even the modest of reforms face uphill battles. We should not allow a false narrative to gloss over the need to reform one of this country’s best tools for mass incarceration. The Gamble case will not affect the Mueller investigation, period. However, it could have an impact on many ordinary cases and it is the ordinary cases like Gamble’s that we should keep in mind.

Tyler Broker is the Free Expression and Privacy Fellow at the University of Arizona James E. Rogers College of Law. His work has been published in the Gonzaga Law Review and the Albany Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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