Questions raised Thursday by U.S. Supreme Court justices in a case involving a felon in possession of a gun could be good news for the prosecutions of special counsel Robert Mueller.
One of the special counsel’s strategies has been to coordinate any state charges with federal counts. That way, analysts point out, the defendants would still be in legal jeopardy even if President Trump pardoned them from federal counts.
The justices on Thursday pointedly questioned whether they should do away with a “double jeopardy” exemption because it could impact those who may be tried on terror charges in an overseas court but then end up in the United States.
In the case at hand, Alabama’s Terence Gamble was convicted on state counts of being a felon-in-possession of a gun after a traffic stop. Then the federal government leveled the same charges against him.
Both prosecutions put him back in jail, and he argued that that amounts to being charged twice for the same crime.
But technically it is allowed, because the federal government and the state are “separate sovereigns,” each with the right to file charges.
At Scotusblog, expert analyst Amy Howe pointed out that at Thursday’s oral arguments, a majority of the justices seemed to have concerns about canceling that exemption.
“After nearly 80 minutes of oral argument this morning, Gamble seemed unlikely to prevail on his argument that the federal charges against him violate the Constitution’s double jeopardy clause, which would in turn preserve the ability of state prosecutors to bring charges against defendants in the Mueller investigation even if they receive pardons from President Donald Trump for any federal charges brought against them,” she explained.
The fact that the high court reviewed the case meant there were four justices who saw concerns, but “after today’s argument it is hard to see how Gamble could get five votes to overturn the separate sovereigns doctrine,” she wrote.
Among those who expressed skepticism, she explained, were Chief Justice John Roberts and Associate Justice Samuel Alito, who asked a question about terrorists acquitted overseas who are exempt from prosecution in the United States.
Justice Brett Kavanaugh alsos said such a decision could hamper national security efforts. Elena Kagan expressed concern Gamble was asking the court to write an opinion based on the Framers’ original understanding of the double jeopardy clause.
Justice Stephen Breyer also expressed concerns, the report said.
WND reported before the arguments how a decision against the double-jeopardy exemption could impact Mueller’s prosecutions.
Gamble was stopped by Alabama police in 2015 for driving with a faulty headlight, and a search of the car turned up a handgun.
Since he had a felony conviction, he was convicted in state court for illegal possession of a firearm and sentenced to a year in prison. While the state case was pending, the feds also charged him with being a felon in possession of a firearm.
He cited the Fifth Amendment ban on double jeopardy, but the federal court rejected the argument, sentencing him to 46 months in prison.
The sentence technically was allowed because the Supreme Court has created an exception to the double jeopardy rule, allowing successive prosecutions by “separate sovereigns.”
Howe had pointed out that if the court agrees that the defendant should not be prosecuted, convicted and imprisoned twice for the same incident, that “could have a widespread impact that could extend to prosecutions by Robert Mueller.”
“Gamble’s case would be an interesting one in any term because of the constitutional and criminal law issues involved,” Howe said. “But his case is drawing even more attention because it is playing out against the backdrop of Robert Mueller’s investigation into potential Russian interference in the 2016 election.
“There has been widespread speculation that, if associates or aides to President Donald Trump are convicted on federal criminal charges arising from the Mueller probe, the president could pardon them. Under the separate sovereigns doctrine, however, they could theoretically still be charged in state court (for example, in New York or Virginia) even after a pardon, so a ruling for Gamble might allow those defendants to get off scot-free,” she said.