About 3 days ago, a meme started floating around the Internet that suggested that the REAL REASON that the Republicans are trying to rush through Brett Kavanaugh’s nomination is because they need him on the Supreme Court to be able to reconsider the “separate sovereigns” doctrine. The “separate sovereigns” doctrine is a part of the jurisprudence of the Double Jeopardy Clause. It says that if someone has already been prosecuted in state court for a certain crime, that doesn’t mean that they can’t also be prosecuted in federal court for the same crime. Because President Trump is going to pardon all of his friends, the conspiracy theory goes, he needs to give them confidence that they won’t then get put into a STATE jail, and to give them that confidence, he needs to have the Supreme Court overrule that doctrine.
The simple answer? This is hogwash — why a little knowledge is a dangerous thing.
The Separate Sovereigns Doctrine History:
First, some background. In Puerto Rico v. Sanchez Valle, the defendant illegally sold a gun. That violated a Puerto Rico law, and also a federal law. Sr. Sanchez Valle was prosecuted for violating the Puerto Rico statute prohibiting selling a gun without a license in the Puerto Rico court, and then got prosecuted in the United States District Court for the District of Puerto Rico for the same thing — selling a gun without a license in violation of federal law. The defense complained that it violated the Double Jeopardy Clause to allow both prosecutions.
The most common situation in which this question arises is a drug distribution. Selling drugs violates state law and federal law, and it is not uncommon to see a drug seller prosecuted in state court, convicted, and sentenced to state prison, and then to get prosecuted for the same act in federal court.
In this case, the Supreme Court decided that Puerto Rico — which is not a state — is not a “separate” sovereign from the federal government.
Justices Ruth Bader Ginsburg and Clarence Thomas — unusual allies — wrote separately to say that the “separate sovereign” doctrine needs to be rethought, and perhaps overruled:
The doctrine has no explicit basis in the Constitution, and is entirely a judge-made rule. I should add that it is a judge-made rule of judicial restraint — to keep the court from interfering in how the different executive branches enforce the law. A more activist position would be to jump in and say that that is unfair, it violates the Double Jeopardy Clause, etc., and that is what Justices Ginsburg and Thomas have advocated.
Gamble v. United States:
Now we fast-forward to the case of Terance Gamble, who was convicted on Alabama state charges of possession of a firearm after having been convicted of a felony, and then was charged, and convicted, on the identical federal charge of possession of a firearm after having been convicted of a felony. He appealed, and the Eleventh Circuit affirmed. He filed a petition for writ of certiorari in the United States Supreme Court, which was granted over the summer on the question of whether the “separate sovereigns” doctrine should be overruled.
Amicus briefs have been filed on behalf of Terance Gamble by the National Association of Criminal Defense Lawyers, by the Cato Institute, and by Senator Orrin Hatch , among others. Hatch’s argument was a somewhat odd one, coming from him — that permitting both prosecutions encourages what he calls the “hyperfederalization” of the criminal law, the tendency of Congress to make more things “federal” crimes when there is no particularly good reason that it couldn’t just be handled at the state level. (A cynic might note that Hatch, as Chair of the Senate Judiciary Committee, and a long-time member of that Committee, has probably voted for more new federal laws than just about anyone…)
I have no idea whether there are going to be 5 votes to change this rule; the granting of the cert. petition means that there were 4 votes to take a look, but one of those 4 might have been the now-departed Justice Kennedy.
What does this have to do with Donald Trump?
ALMOST NOTHING. It is highly unlikely that any change in the separate sovereigns doctrine would have any effect on the pending criminal investigations of Donald Trump and his friends.
There are very few crimes that Trump and his buddies can be convicted of that would implicate the separate sovereign doctrine. The charge of lying to a federal official, for example, is not a state crime. Failing to file as a foreign agent is a federal crime, not a state crime. Federal tax fraud is a federal crime. But state tax fraud — even if you are using the same phony numbers — is not the same crime as federal tax fraud, and the separate sovereign doctrine is not implicated. Right now, the state folks could be going after Paul Manafort if they wanted to; they just don’t care that badly because the feds are doing it. If President Trump wanted to pardon Manafort for his convictions on the federal tax fraud charges, he could; but he couldn’t prevent a prosecution and conviction and prison for state tax fraud. I haven’t looked at what state charges might be brought against Manafort, but if there is a problem with that, it is not a problem that implicates the separate sovereign doctrine.
Note, by the way, that the separate sovereign doctrine does NOT refer to where the same set of actions violates both some state and some federal laws; it doesn’t apply to the same set of facts, but to the same elements of different statutes. So if a defendant has sold cocaine in Charlottesville, and he was arrested they found that he had a gun on him, he could be prosecuted in state court for the drug charge, and in federal court on the gun charge, and that is true whether or not the separate sovereign doctrine is in place.
This all became a “thing” about 3 days ago, when some newspaper in Mississippi latched onto it. Most legal commentators have said that there is no “Trump angle” to it — if they want to do away with the separate sovereign doctrine, it is highly unlikely that the Trump folks would have violated a statute that is identical in both state and federal courts.
Bottom line — this is posted by someone with a little knowledge, enough to make them dangerous.
