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We Can't Fix Double Jeopardy Because Donald Trump Is A Criminal

In a law class, I'd support the petitioners in Gamble v. U.S., but in TrumpWorld they need to lose.

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If only we could have nice things (photo via Getty)

There is a version of America where I too would be opposed to the separate sovereigns doctrine that is at the heart of Gamble v. United States.

Gamble was argued before the Supreme Court yesterday, and I am sympathetic to his cause. Terance Gamble was busted for a broken taillight, which led to a search, which led to drug and weapons charges. Gamble was charged with both state and federal crimes. He was sentenced to a year on the state charge, and then the feds came to prosecute him again. Gamble argues that the second prosecution violates his Fifth Amendment protection against double jeopardy; normally, you cannot be prosecuted twice for the same offense.

The government gets around double jeopardy all of the time, under the separate sovereign doctrine. The argument is that the federal government is a separate entity from the state government, and so each one of them has the right to prosecute you, even if they are prosecuting you for the same fundamental crime or set of actions. Even people who loathe federalism can see the utility of this doctrine: for surely being charged with a crime abroad would not preclude the U.S. authorities from prosecuting you under our laws (looking at you, Deutsche Bank).

Despite the strong philosophical underpinnings and long precedential history of the separate sovereign doctrine, people interested in criminal justice reform know that it is has been used to terrorize vulnerable criminals. It’s not just that the government gets a “second bite at the apple” on your allegedly criminal behavior. The threat of federal charges can also be used to bully potentially innocent people into taking a plea. Separate sovereigns is another tool in the prosecutor’s bag of intimidation techniques to beat alleged criminals into submission.

The petitioners in Gamble have a very good point, and yet they must lose. Because separate sovereigns is one of the only ways to “pardon proof” the investigation into Russian interference in our elections and protect our justice system from the criminal president. Yes, it would be very nice to live in a world where prosecutors had to choose whether to charge Paul Manafort with federal crimes or state crimes based on the same acts of criminal behavior. But we don’t live in a nice world. We live in a world where the President of the United States is desperately trying to figure out how to protect his cronies before they rat him out. We can’t have an honest discussion about how double jeopardy can be more of a restriction on law enforcement, when the nation’s chief executive believes he is above the law.

Terance Gamble is just going to have to take one for the team. The needs of a country trying to hold its ruling class accountable for their massive international criminal conspiracy, outweigh the needs of a dude who is going to go to jail twice over for a broken taillight.

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There are other reasons to support separate sovereignty beyond its impacts on Trump. But, again, those reasons have more to do with how terrible we are as a people than with how the Fifth Amendment should really work. If you didn’t need separate sovereignty to get Trump’s associates, you’d still need it to get the kinds of racist people who vote for Trump in the first place. We can’t reliably trust states to actually prosecute people who violate civil rights. It’s not because states don’t have civil rights laws, it’s because Confederate state officials who are supposed to enforce those laws don’t always care about defending civil rights.

Sometimes, the Department of Justice doesn’t care about enforcing civil rights law either (see, for instance, every Republican administration since the passage of the Civil Rights Act). But when the Justice Department does care to enforce specific prohibitions against white male supremacy, they often need to rely on separate sovereignty to do it. Sure, tiki-torch-waving MAGA assholes don’t understand the concept of separate sovereignty, but its existence is why they aren’t constantly running to court claiming federal civil rights prosecutions are twice prosecuting them for the single act of racial animus Mississippi already said was cool.

Separate sovereignty needs to stay, and on SCOTUSblog Amy Howe suggests that the Supreme Court is unlikely to overturn it. Her argument analysis notes that Ruth Bader Ginsburg AND Clarence Thomas both seem on board with re-examining separate sovereignty. I assume Ginsburg is here for my concerns about criminal justice reform, while Thomas is in it to help racists escape federal civil rights charges. The law makes strange bedfellows. Howe noted that Neil Gorsuch seemed to be mulling various options, but the rest of the justices seemed hostile.

Even Justice Brett, Trump’s handpicked mole on the Supreme Court, seemed skeptical about overturning what Elena Kagan called a “170-year-old rule.” Though I wouldn’t trust Brett on this issue. He seems to be the kind of guy who will go along with any horrible thing if he thinks it makes him look cool in front of his friends, so if he was the fifth vote to do Trump a solid and make it happen, I’d assume he’d cave.

This feels like an 8-1 decision to me, with Gorsuch writing some kind of majority screed about how the Man of Law in the Canterbury Tales would have adjudicated a violation of both Islamic and Christian law, while Thomas writes a dissent on the grounds that the federal government doesn’t actually exist.

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But it’s too bad. There is a problem here. We just have too many despicable people in charge of the country to fix it.

Argument analysis: Majority appears ready to uphold “separate sovereigns” doctrine [SCOTUSblog]

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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