Support The Bulwark and subscribe today.
  Join Now

Why the Supreme Court’s Double-Jeopardy Decision Is Bad News for Trump

June 19, 2019
Why the Supreme Court’s Double-Jeopardy Decision Is Bad News for Trump
Thanks to the Gamble decision on double jeopardy, there is one turkey that President Trump could have a hard time pardoning. (Photo credit should read JIM WATSON/AFP/Getty Images)

In Gamble v. United States, the Supreme Court held that the double jeopardy clause does not bar state and federal authorities from prosecuting and convicting the same individual for the same conduct—that is, one prosecution under state law and another under federal law.

But the decision says much more about this Supreme Court than it does about the legal issues in the case. Which is good news.

In Gamble, the defendant—already a convicted felon—was caught with a firearm. He pleaded guilty to the crime of felon-in-possession-of-a-firearm under Alabama law. Later, the federal government prosecuted Gamble for the same conduct under federal law. Gamble argued that this “twofer” violated the Fifth Amendment to the Constitution, which states in relevant part that “[n]o person shall … be subject for the same offense to be twice put in jeopardy of life or limb.” By heading to prison for a longer term than he would have served under Alabama law alone, Gamble claimed that he was subjected to double jeopardy for the same crime.

The court ruled 7-2 against Gamble. But refreshingly, it did not split along stereotypical political lines. Conservative Justice Alito wrote the majority opinion, in which conservative justices Roberts, Thomas, and Kavanaugh joined, along with the more liberal justices Breyer and Kagan. Neil Gorsuch and Ruth Bader Ginsberg both filed their own dissenting opinions.

It’s unsurprising that conservatives in the majority would come out against a criminal defendant in this case. Theoretically, the ruling favors the police powers of state and federal governments over the liberty interests of a criminal defendant.

Conservatives also tend to support “federalism” or “dual sovereignty,” which protects the interests of the states as sovereigns in their own right and eschews attempts by the federal government to tread on what has traditionally been the states’ turf. Criminal law is one such turf—old-fashioned crimes like murder, kidnapping, robbery, and assault were historically left to the states unless something “federal” is involved, like carrying a kidnapping victim across state lines. By holding that the double jeopardy clause was not violated here, the majority stood behind the states’ sovereign prerogative to enact and enforce their own criminal laws, regardless of what the feds do.

Why, then, in a rare glimpse of bipartisanship in government, did liberals join conservatives on both sides of this case? Who knows? What matters are the ruling’s broad implications for a number of issues of national importance these days.

First, the majority of the court ruled in favor of stare decisis, which means that it paid due respect to precedents established by prior Supreme Courts. Overlapping state and federal offenses haven’t bothered the Court for 170 years, Justice Alito reasoned, and there’s no reason to upset its bedrock construction of the double jeopardy clause now. Alito’s nod to precedent has implications for the longevity of the court’s controversial decision recognizing a right to abortion in Roe v. Wade. Because Roe has been affirmed numerous times over the years, Gamble suggests that this court might be more reluctant to overturn Roe then some have surmised.

Second, the conservative-led majority shied away from an “originalist” reading of the double jeopardy clause. Justice Alito wrote that Gamble’s arguments amounted to “ambiguous historical evidence” about what the double jeopardy clause was intended to do in the first place. For a conservative justice like Alito, a rejection of this kind of argument—which links the text with contemporaneous evidence of what the framers of the Constitution arguably wanted—is a big deal. It’s an acknowledgement that the Constitution’s “plain meaning” cannot rise and fall on what a bunch of dead white guys presumably thought in 1787. The Constitution is ambiguous. It requires thoughtful and reasonable interpretation today.

Third, despite the widespread concern that the conservative Supreme Court majority will shore up President Trump’s power grabs any chance it gets, that didn’t happen here. It could have. Trump’s former campaign chairman Paul Manafort is serving time for federal crimes and also facing trial on multiple, overlapping state charges. If Trump were to pardon Manafort one day, Gamble means that Manafort will remain criminally liable under state laws.

The reason this case is about presidential power is that Trump could try to pre-emptively pardon himself of any federal obstruction of justice charges that—under a subsequent president— might flow from the evidence set forth in Vol. 2 of Special Counsel Robert Mueller’s report. He could also pardon himself of the criminal campaign finance violations that he was pinged for by the U.S. attorney’s office for the Southern District of New York in connection with its indictment of former Trump lawyer Michael Cohen. If Trump wins a second term in 2020, the general five-year statute of limitations period would likely shield him from prosecution for those alleged crimes. Otherwise, he could face a federal indictment on the day he leaves office, which a pre-emptive pardon might erase.  

Under the Supreme Court’s decision in Gamble, however, Trump—like Manafort—could still face criminal charges under state law even if he pardons himself for federal crimes. (Note that the constitutionality of a self-pardon is hardly clear.) A finding that Gamble’s second prosecution violated the double jeopardy clause would have immunized Trump from certain state charges, as well. That can’t happen now. He’s on the hook for any state law crimes—regardless of pardons.

At the end of the day, the fact that the justices in Gamble did not do what one might expect them to do based on ideological predilections is a good thing for the rule of law and for the Supreme Court. It reflects independent, rigorous thinking on the part of these nine life-tenured Americans who wield an exorbitant amount of power over our daily lives—power that voters can’t do anything about at the ballot box. Gamble lost his bid for more liberty in this case. But in a world where black-and-white, win-at-all-costs thinking pervades, the decision is a win of sorts for the rest of us.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She served as an assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. She is currently a professor at the University of Baltimore School of Law. An ABC News legal contributor, she is the author of three books with HarperCollins: How to Read the Constitution—and Why, What You Need to Know About Voting—and Why, and, most recently, How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Her new book, Pardon Power: How the Pardon System Works—and Why, is forthcoming in September 2024 from Woodhall Press. @kimwehle.