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Washington, United States | AFP | US Supreme Court justices appeared divided on Thursday as they took up the question of “double jeopardy” — whether a person can be tried twice for the same offense — in a case with possible implications for President Donald Trump and the Russia probe.
The Fifth Amendment of the US Constitution says that no one can be “twice put in jeopardy of life or limb” for the same crime.
But the nation’s highest court has ruled previously that being tried separately by state and federal prosecutors does not violate this principle because they are “separate sovereigns.”
After hearing arguments on Thursday, a majority of the nine-member court appeared to lean towards maintaining the status quo.
“We are really uncomfortable throwing out a 170-year-old rule,” said Justice Elena Kagan, adding that it would raise the question of “whether the federal government would have to subordinate its interests to the states.”
The case before the court involves Terance Gamble, who in 2008 was convicted of second-degree felony robbery.
Seven years later, Gamble was pulled over in Alabama for a traffic violation and found to be in possession of a gun. The state sentenced him to a year in prison because felons are barred from possessing firearms.
Federal authorities tried Gamble separately for the same gun offense and he was sentenced to four years in prison.
His lawyers argued that this amounts to “double jeopardy.”
They appeared to get a sympathetic hearing from Justice Ruth Bader Ginsburg who said the exception to the Constitution allowing for double prosecutions has been “widely criticized by academics and federal judges.”
But a majority of the justices — a rare coalition of both conservatives and liberals — appeared wary of overturning longstanding precedent.
“Are there a lot of cases where people were prosecuted twice?” asked a skeptical Justice Stephen Breyer. “I did not see them in the briefs here.”
There have been a number of notable cases in the past including that of Terry Nichols, accused of the bombing of a federal building in Oklahoma City in 1995 which left 168 people dead.
After federal authorities failed to win a death penalty conviction, the state of Oklahoma put Nichols on trial. Nichols was sentenced to life in prison again because the jury was not unanimous on putting him to death.
– ‘Metastasizing’ law –
In another prominent case, federal authorities charged police officers suspected in the 1991 beating of black motorist Rodney King in Los Angeles after a mainly white California state jury had acquitted them.
Among those urging the court to rule against “double jeopardy” is the American Civil Liberties Union.
“With the ever-metastasizing federal criminal law — there are now over 4,500 federal crimes on the books — there is tremendous overlap with state law on everything from drug possession to tampering with an odometer,” the ACLU said.
“This greatly increases the threat of duplicative prosecutions for a vast and increasing amount of conduct.”
But civil rights groups such as the Thurgood Marshall Center are more cautious, arguing that letting people be tried by both a state and the federal government has helped advance the cause of African-Americans.
They say blacks are often better defended by federal prosecutors.
The court’s decision in the case is being closely watched for its potential impact on Special Counsel Robert Muller’s probe of alleged collusion between the Trump campaign and Russia in the 2016 presidential election.
Trump has said he does not rule out pardoning his former campaign manager Paul Manafort, who faces prison time for violating federal fraud laws.
Under the current separate sovereigns doctrine, states such as New York or Virginia could bring charges against Manafort if Trump pardons him.
But if the court rules in favor of Gamble and no longer upholds more than one trial for one offense, a Trump pardon would stand pat.
A pardon could also be seen as Trump’s way of encouraging other suspects in the Russia probe to decline to cooperate with Mueller, with the suggestion that if they hold fast, he will reward them with a pardon.
Sandra Guerra Thompson, a law professor at the University of Houston, was among a group of academics who wrote to the court in support of Gamble.
“They should not allow these double prosecutions any longer, but it’s a feature of federalism,” she told AFP.
The court is not expected to rule until June and Thompson was not overly optimistic about Gamble’s chances.
