Those bracing for potential pardons by President Donald Trump of individuals convicted in former special counsel Robert Mueller’s investigation were tracking the Terance Gamble v. U.S. case. | Alex Wong/Getty Images Legal Supreme Court rules in case watched for impact on Trump pardons

The Supreme Court ruled Monday in a closely watched “double jeopardy” case, issuing a decision that preserves states’ power to limit the impact of future pardons by President Donald Trump or his successors.

In a 7-2 ruling, the justices declined to disturb a longstanding legal principle known as dual sovereignty, which allows state governments to bring their own charges against defendants already tried or convicted in federal court, or vice versa.


Lawyers for an Alabama man facing a gun charge in federal court after pleading guilty to the same offense in state court — resulting in a nearly three-year extension of his prison sentence — failed in their effort to persuade the justices to hold that the Constitution’s prohibition on double jeopardy prevents such follow-on prosecutions.

The federal government had argued that overturning the dual-sovereignty doctrine would upend the country’s federalist system, and that the phenomenon of overcriminalization makes states’ ability to preserve their own sphere of influence and prevent federal encroachment on law enforcement more important.

Democrats and others bracing for potential pardons by Trump of individuals convicted in former special counsel Robert Mueller’s investigation were tracking the case, Terance Gamble v. U.S., because a decision overturning the dual sovereigns rule could have complicated efforts by state prosecutors to blunt the impact of any attempt Trump may make to grant clemency to those targeted by Mueller’s team.

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Still, the high court case was not seen as make-or-break for state prosecutions because Mueller didn’t bring charges on every potential crime he uncovered. In addition, the federal prosecution of former Trump campaign chairman Paul Manafort resulted in a combination of jury convictions, guilty pleas, mistried charges and dismissals as part of a plea deal.

The complex result in Manafort’s case left fertile ground for New York prosecutors, who jumped into the breach in March with a 16-count indictment charging the longtime lobbyist and political consultant with mortgage fraud, falsifying business records and other crimes. The offenses seemed to partially overlap with crimes Manafort was charged with in federal court in Virginia.

Manafort’s lawyers in the state case have indicated they plan to argue that the indictment obtained by Manhattan District Attorney Cyrus Vance Jr. violates a New York law that limits state prosecutions of crimes already prosecuted at the federal level.

New York’s Democrat-controlled Legislature has been trying to alter that law to limit its application in cases where a defendant receives a presidential pardon or commutation.

A bill aimed at doing that won formal approval last month from both chambers of the state legislature but has not yet been sent to Gov. Andrew Cuomo, who has signaled he plans to sign it. The measure includes language seeking to cover individuals already convicted, tried or who pleaded guilty, but it’s unclear whether applying the law that way is constitutional.

The bulk of the opinions the justices issued Monday were focused on historical evidence about whether the founders expected that dual prosecutions would be permitted or forbidden by the Constitution.

“Gamble’s historical arguments must overcome numerous ‘major decisions of this Court’ spanning 170 years,” Justice Samuel Alito wrote on behalf of the seven-justice majority. “In light of these factors, Gamble’s historical evidence must, at a minimum, be better than middling. And it is not.”

The decision drew separate dissents from justices at opposite ends of the court’s ideological spectrum: liberal Ruth Bader Ginsburg and conservative Neil Gorsuch.

“It is the doctrine’s premise that each government has — and must be allowed to vindicate — a distinct interest in enforcing its own criminal laws,” Ginsburg wrote. “That is a peculiar way to look at the Double Jeopardy Clause, which by its terms safeguards the ‘person’ and restrains the government.” She argued that the legal precedent was weak, noting that “early American courts regarded with disfavor the prospect of successive prosecutions by the Federal and State Governments” and that, with regard to concerns about federal and state governments interfering with each other, “cooperation between authorities is the norm.”

Gorsuch, meanwhile, argued that “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.”

He added that the separate sovereigns exception “finds no meaningful support in the text of the Constitution,” unlike the Constitution’s ban on double jeopardy.

Fordham University law professor Jed Shugerman told POLITICO that the Gamble decision will have “no real impact on Trump cases.” Manafort is still facing state prosecutions in New York and Virginia, which have their own jeopardy rules, he noted. And former national security adviser Michael Flynn’s guilty plea to one count of making false statements to the FBI was limited to federal law, Shugerman said. The same appears true of Roger Stone’s prosecution on false statement and witness tampering charges, he added.

“Trump and others aren't getting prosecuted federally anyway before 2021, so they haven't faced a single jeopardy yet,” Shugerman said. “A pardon wouldn't create jeopardy, so they'd still face state prosecutions post-pardons.”

Some opponents of the proposed New York changes urged legislators to hold off passing them until the Supreme Court ruled in the case decided Monday. Experts said the decision might encourage more states to tinker with their double-jeopardy limits.

“The big question may be how states react to this ruling, and whether it will incentivize some states to ban trials by separate sovereigns of the same defendant for the same conduct, or, now that the Court has said the federal Constitution isn’t offended, whether states that already have such bans might relax them,” said University of Texas law professor Stephen Vladeck.

Bill Mahoney contributed to this report.

