Utah lawmaker Orrin Hatch, who sits on the Senate Judiciary Committee, filed a 44-page amicus brief earlier this month in Gamble v. United States, a case that will consider whether the dual-sovereignty doctrine should be put to rest.
The brief argues: “This Court has previously upheld the dual sovereignty doctrine, which allows consecutive prosecutions for the same crime by a state and the federal government without violating the Fifth Amendment’s Double Jeopardy Clause or the Fourteenth Amendment’s Due Process Clause, as an incident of our federalist system.”
Basically, the 150-year-old exception to the Fifth Amendment’s double-jeopardy clause allows state and federal courts to prosecute the same person for the same criminal offense. And based on the brief he filed on September 11, Hatch believes the doctrine should be overturned.
Why is this case important?
In the first place, looking at the Mueller probe, the dual-sovereignty doctrine is seen by many in the legal profession as a check on President Donald Trump’s power.
As long as this doctrine is in force, it would discourage Trump from pardoning anyone convicted of a crime in the Mueller probe because they could still be charged for the crime at the state level.
For example, if Trump were to pardon his former campaign chairman Paul Manafort – who has been convicted on eight counts of tax and bank fraud in federal court – Manafort could still be charged in New York and Virginia for any crimes that violated their respective laws. So this means that if the dual-sovereignty doctrine is tossed by SCOTUS, Manafort could be pardoned by Trump and not be recharged at the state level.
There is an escape hatch, so to speak if Trump shuts down the Mueller investigation or pardons his associates. Elie Honig, a former assistant U.S. attorney in New Jersey says, “The escape hatch, then, is for cases to be farmed out or picked up by state-level attorneys general, who cannot be shut down by Trump and who generally—but with some existing limits—can charge state crimes even after a federal pardon.”
But she adds, “If Hatch gets his way, however, a federal pardon would essentially block a subsequent state-level prosecution.”
Hatch’s answer is to end federalism
Paul Rosenzweig is a former senior counsel on the Whitewater investigation who serves as a senior fellow at the conservative R Street Institute. He thinks Hatch’s brief is “wrong substantively.”
He goes on to say that “if over-federalization of crime is a problem, we should stop over-federalization.” He also points out that Hatch wants to end federalism.
“It is at least plausible that if the Court gets rid of the [doctrine], it would mean that an acquittal in state court would prevent a second trial in federal court and vice versa,” Rosenzweig told the Atlantic. But he notes that Trump’s pardon powers are “explicitly limited in the text of the Constitution to pardons for ‘offenses against the United States.”‘
And this is where an interpretation of the doctrine could really muddy the waters for years to come. Rosenzweig explains that if the doctrine is interpreted to mean “federal criminal offenses specifically,” then a pardon by Trump would not protect his associate against state charges.
“Overall one thing is clear,” Rosenzweig said. “A result overturning 200 years of dual sovereignty would very much muddy the waters.”
With the retirement of Supreme Court Justice Anthony Kennedy, the high court is down to eight justices. And if Kavanaugh’s reputation is able to withstand the FBI investigation, and he gets on the bench, he will provide a conservative view that could tip the court’s balance on key issues this year and for years to come.
SCOTUS usually accepts less than 100 of the over 7,000 cases it is asked to review every year. So far this year, they have accepted 44 cases with half of them set for argument during October and November, according to Voice of America.
