‘Separate sovereigns’ ruling is seriously flawed

On June 24, there appeared an article, "Supreme Court ruling is first to consider 'dual-sovereign doctrine' in nearly 100 years" by Professor John H. Minan. The article was brief and to the point. In a 7-2 decision written essentially in recognition of the separate sovereign principle in Gamble v. United States, the defendant, Terrance Gambler, was indicted for possessing a firearm in violation of federal law. Subsequently he was convicted in an Alabama court for being in possession of a firearm in violation of state law.

The professor states that the defendant moved to dismiss the federal indictment on the theory of double jeopardy. The professor states with apparent approval that Justice Samuel Alito, writing for the majority, opined that it follows from the text of the Fifth Amendment that it is not a violation of the double jeopardy clause for defendant to be prosecuted by both the state of Alabama and the federal government.

The Fifth Amendment states, in pertinent part, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb."

Surprisingly, the professor failed to include, or even discuss, the overwhelmingly persuasive separate dissents of Justices Ruth Bader Ginsburg and Neil Gorsuch.

Justice Ginsburg states, in dissent, that after the state of Alabama had convicted Gambler and sentenced him to 10 years, all but one year suspended, the federal government, "apparently regarding Alabama's sentence as too lenient ... pursued a parallel charge." Justice Ginsburg presents several arguments, the most noteworthy and persuasive of which is the following: "the framers of the Bill of Rights voted down an amendment that would have permitted the Federal Government to reprosecute a defendant initially tried by a State." The justice went on to further state that "Nevermind that this amendment failed; the Court has attributed to the clause the very meaning the First Congress refrained from adopting."

This being the case, this argument should have been dispositive of the case with the result that defendant Gambler should not have been prosecuted by the federal government as to do so would have been a violation of the double jeopardy clause of the Fifth Amendment. Professor Minan made no mention of this pertinent, cogent dissent.

Justice Gorsuch stated in separate dissent, "A free society does not allow its government to try the same individual for the same crime until it's happy with the result. Unfortunately, the Court today endorses a colossal exception to this ancient rule against double jeopardy. My colleagues say that the federal government and each State are 'separate sovereigns' entitled to try the same person for the same crime. So if all the might of one 'sovereign' cannot succeed against the presumptively free individual, the other may insist on the chance to try again. And if both manage to succeed, so much the better; they can add one punishment on top of the other. But this 'separate sovereigns exception' to the bar against double jeopardy finds no meaningful support in the text of the Constitution, its original public meaning, structure, or history. Instead the Constitution promises all Americans that they will never suffer double jeopardy. I would enforce that guarantee."

Justice Gorsuch continues: "Viewed from the perspective of the ordinary reader of the Fifth Amendment, whether at the time of its adoption or in our own time, none of this can come as a surprise. Imagine trying to explain the Court's separate sovereigns rule to a criminal defendant, then or now. Yes, you were sentenced to state prison for being a felon in possession of a firearm. And don't worry -- the state can't prosecute you again. But a federal prosecutor can send you to prison again for exactly the same thing. What's more that federal prosecutor may work hand-in-hand with the same state prosecutor that already went after you. They can share evidence and discuss what worked and what didn't the first time around. And the federal prosecutor can pursue you even if you were acquitted in the state case. None of that offends the Constitution's plain words protecting a person from being placed 'twice ... in jeopardy of life or limb' for 'the same offense.' Really?"

Another compelling, cogent argument, in support of Gambler's motion to dismiss the federal indictment based on double jeopardy grounds. And another argument which Professor Minan failed to address or even acknowledge.

And then Professor Minan's reticence became understandable. The professor's closing paragraph is as follows:

"The case is significant in a broader sense when considering the reach of the president's pardoning power, which is limited to federal crimes. For example, Paul Manafort, Trump's former campaign manager, has been charged with a dozen New York state felonies. Regardless of whether he receives a federal pardon, the New York state charges ensure prison time.

In the professor's rush to incarcerate anyone associated with Trump, even if the alleged offense has nothing to do with Trump, the professor ignores the fact that charges alone do not ensure incarceration. So the professor will accept an erroneous decision written by a conservative, and ignore a most-cogent, correct dissent, written by a liberal, provided possible harm will be visited upon President Trump.

-- Richard A. Nixon,Esq.