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Court Case Relevant to Pardons

  • FILE - In this Oct. 5, 2018, file photo, the U. S. Supreme Court building stands quietly before dawn in Washington. The Constitution says you can’t be tried twice for the same offense. And yet Terance Gamble is sitting in prison today because he was prosecuted separately by Alabama and the federal government for having a gun after an earlier robbery conviction. he Supreme Court is considering Gamble’s case Thursday, Dec. 6, and the outcome could have a spillover effect on the investigation into Russian meddling in the 2016 election. (AP Photo/J. David Ake, File)



Associated Press
Wednesday, December 05, 2018

Washington — The Constitution says you can’t be tried twice for the same offense. And yet Terance Gamble is sitting in prison today because he was prosecuted separately by Alabama and the federal government for having a gun after an earlier robbery conviction.

The Supreme Court is considering Gamble’s case today, and the outcome could have a spillover effect on the investigation into Russian meddling in the 2016 election.

At issue is whether to overturn a court-created exception to the Constitution’s double-jeopardy bar that allows state and federal prosecutions for the same crime. The court’s ruling could be relevant if President Donald Trump were to pardon someone implicated in special counsel Robert Mueller’s probe and a state wanted to pursue its own charges against that person.

Supreme Court lawyer Tom Goldstein joked at a Washington event before the term began in October that the high court case should be called New York v. Manafort, a reference to former Trump campaign manager Paul Manafort. Trump has refused to rule out an eventual pardon for Manafort, who has been convicted of federal financial fraud and conspiracy crimes. It’s by no means certain that the high court ruling will affect future prosecutions.

But Trump’s Justice Department is urging the court not to depart from what it says is an unbroken line of cases reaching back nearly 170 years in favor of allowing prosecutions by state and federal authorities. Thirty-six states that include Republican-led Texas and Democratic-led New York are on the administration’s side, as are advocates for Native American women who worry that a decision for Gamble would make it harder to prosecute domestic and sexual violence crimes.

Civil rights scholars at Howard University adopt a sort of middle ground that urges the court to at least preserve the federal government’s ability to lead civil rights prosecutions against people who have been acquitted of state charges. Civil rights charges to fight crimes of racial violence have been a key tool for federal prosecutors, especially when Southern juries were unwilling to convict defendants. The most recent example the scholars cited is the successful federal prosecution of Los Angeles police officers who had been acquitted of state charges in the beating of Rodney King.

On the other side, liberal and conservative groups say that the huge growth in federal criminal prosecutions in recent decades makes it urgent for the court to rein in successive prosecutions for the same crime.

Reinforcing the seemingly odd alliances in play on this issue is that the unlikely high court duo of Justices Ruth Bader Ginsburg and Clarence Thomas first suggested in 2016 that the topic “bears fresh examination in an appropriate case.”

At least four justices — the minimum required to hear arguments — felt Gamble’s situation is that appropriate case.

Fordham law professor Jed Shugerman and author Teri Kanefield recently wrote that the Supreme Court case won’t be a threat to the Mueller probe no matter how it comes out. They noted on Slate.com that Mueller likely did not file every charge he could have against Manafort, former Trump lawyer Michael Cohen or former national security adviser Michael Flynn. So state prosecutions would be possible, even if Trump were to issue pardons.