The U.S. Supreme Court last week made a little-noticed but, under the current president, potentially important ruling upholding the longstanding principle that states can bring their own charges against criminal defendants previously tried in federal court, and vice-versa.
We’re not entirely comfortable with this principle. Detractors argue, not unreasonably, that it smacks of double jeopardy. But that discomfort is mitigated somewhat by the fact that, with a president who has already abused his federal pardon powers and has telegraphed worse to come, state-level charges could become a firewall for justice.
The Fifth Amendment says criminal defendants shall not be “twice put in jeopardy” — that is, they can’t be tried repeatedly for the same crime. But that double-jeopardy prohibition has long been assumed not to apply when both federal and state authorities want to separately try a person for a crime that violated both state and federal law. Though the offense is the same, defenders argue, the jeopardy is separate because state and federal courts are distinct systems.
By a 7 to 2 vote, the Supreme Court declined to overturn that principle in Gamble v. U.S. The defendant was convicted of a weapons charge in Alabama, then convicted of a federal criminal violation for the same infraction, resulting in a longer sentence. An unlikely duo of dissenting justices — liberal Ruth Bader Ginsburg and conservative Neil Gorsuch — argued that the Constitution’s double-jeopardy prohibition should end all action in such cases after either a state or federal verdict has been rendered.
But if there’s a silver lining to this uneasy outcome, it’s that keeping the current system in place could prevent President Donald Trump from using his pardon powers to obstruct justice even more than he already has.
Trump’s pardons so far have been
driven mostly by personal or political self-interest, including immigrant-tormenting Arizona Sheriff Joe Arpaio, right-wing troll Dinesh D’Souza, Trump-coddling publisher Conrad Black, and old family friend Patrick Nolan.
Worse, as a means of keeping witnesses quiet, Trump has repeatedly weighed pardoning some of those caught up in the investigations into his own campaign. He has even claimed the right to pardon himself, should the need arise.
But the presidency’s broad pardon powers only extend to violations of federal law. If Trump were to pardon, for example, former campaign manager Paul Manafort of his federal crimes, Manafort still could (and does) face New York state criminal charges that somewhat overlap with the federal ones. With the Supreme Court’s ruling, that kind of overlap is still permitted — and Trump cannot meddle with any conviction New York or any other state might render against Manafort or anyone else.
The double-jeopardy debate will likely come up again, and perhaps should. But for now, there’s comfort in knowing some levers of justice remain beyond this president’s reach.