What’s the deal with Gamble v. United States?
The case, on the U.S. Supreme Court’s docket for 2018-2019, is getting a lot of attention in the wake of the Kavanaugh hearings. So far, I’ve spotted this Facebook meme:
Facebook meme text:
On next month’s SCOTUS docket is Gamble v. US No. 17-646. This is what the rush is about. Yes, they want him to overturn Roe, yes they want him to drag us all back, but they need him seated for October to rule on that specific case. At stakes [sic] is the “separate sovereigns” exception to double jeopardy. If he (and the other 4 conservative judges) vote to overrule it, people given presidential pardons for federal crimes cannot be tried for that crime at the state level. Bam. Trump can pardon the lot of them and they have nothing to fear from state’s attorneys. We’re all looking at the shiny coin and not seeing the bigger picture.
The Atlantic has this article, which appears more or less to support the meme’s position; but see this post by Ed Brayton at Patreon, which points out at least one flaw in the meme’s reasoning.
A fun true fact about me, for new readers: I used to be a lawyer. These days, pretty much all I do with my law degree is use it to interpret one of my top hobbies, SCOTUS-watching, for amusement and edification. Here’s what I can tell you about Gamble.
What is Gamble v. US all about, anyway?
On its face, Gamble is pretty straightforward. Back in the day, Mr. Gamble got convicted of a felony. Under both the law of his state (Alabama) and federal law, that felony conviction meant he couldn’t legally possess a firearm.
Fast-forward a few years. Mr. Gamble is pulled over by police one day. Inside his vehicle, the cops find a loaded weapon. Mr. Gamble is prosecuted by the state of Alabama for being a felon in possession of a firearm and convicted, under Alabama state law.
Then, the federal government decides that it wants to prosecute Mr. Gamble for being a felon in possession of a firearm, too. It convicts him under federal law. The federal conviction adds about three years to the almost-four-year sentence he’s already received for the state conviction.
Throughout the process, Mr. Gamble continually points out that, hey, this should be double jeopardy. And judges agree with him! One even said that, were it not for the “separate sovereigns” exception to double jeopardy, Mr. Gamble could not possibly be tried twice for being a felon in possession of a firearm.
So Mr. Gamble appealed. And has kept appealing. And now he’s got a hot date with the U.S. Supreme Court.
So is this really “double jeopardy”?
Yes. The Fifth Amendment reads:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
(Important bit in bold.)
Mr. Gamble was convicted in Alabama under Alabama Code section 13-11-72(a), which reads:
No person who has been convicted in this state or elsewhere of committing or attempting to commit a crime of violence, misdemeanor offense of domestic violence, violent offense as listed in § 12-25-32(15), anyone who is subject to a valid protection order for domestic abuse, or anyone of unsound mind shall own a firearm or have one in his or her possession or under his or her control.
(g) It shall be unlawful for any person— (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year…
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
What’s the “separate sovereigns” exception?
The short and dirty version is “Trying someone twice for the same crime is not okay, unless two separate governments do it.” And in the U.S. federal system, a state government and the federal government count as “two separate governments.”
The “separate sovereigns” exception isn’t in the text of the Constitution. It arises from British common law, much of which we imported way back in the late 1700s because it was, frankly, what we were used to. I won’t get into its background here, but if you want to read 150 years of precedent supporting it, check out the lists of cited cases in the briefs for Gamble, which are available at the SCOTUSblog link at the top of this post.
Does the “separate sovereigns” exception really make it possible for the President to pardon people for state crimes?
No. But it does make possible a result with nearly-identical consequences, in a handful of specific cases.
For example, suppose that Mr. Gamble had been tried by the federal government first – but the President stepped in to pardon him. Under our current system, Alabama can still try him for the same crime.
Without the separate sovereigns exception, however, Alabama would not be able to try Mr. Gamble for being a felon in possession of a firearm once the President had pardoned him, because the Fifth Amendment’s bar to double jeopardy would prevent it. The federal charges and the pardon would be the end of it (assuming Mr. Gamble had not committed some other crime).
That sounds pretty ominous if you’re not keen on our current President pardoning anyone. But here’s the number-one reason it’s unlikely to occur except in a minute handful of cases:
When people face multiple charges from the same single act, in most cases, double jeopardy doesn’t even apply in the first place.
The relevant test comes from Blockburger v. United States, and it states (I’m paraphrasing) that it’s not double jeopardy to face two charges for the same act, as long as each charge contains at least one element the other does not.
This can be confusing in the abstract, so here’s an example.
Suppose that a completely hypothetical defendant named Maul Panafort is accused of committing tax fraud – basically, of hiding millions of dollars so that he didn’t have to pay either the IRS or his home state of Michissippi any taxes on that money.
Now, it’s pretty tough to lie on your federal tax return without lying on your state tax return, or vice versa. State tax returns use information like your adjusted gross income, calculated on your federal return. When those numbers don’t match up, folks get suspicious.
Wanting to evade suspicion, Maul Panafort naturally used the same fake numbers on his state tax return as he did on his federal tax return. But both the state and the feds found out, and now they both want to charge him with criminal tax fraud.
It’s not double jeopardy if they do. Take a look at the charges:
- Federal: “you lied on your federal tax return.”
- State: “you lied on your state tax return.”
Both charges include “you lied” and “on your tax return.” But the federal charge includes the “federal” element, which the state charge does not. The state charge includes the “state” element, which the federal charge does not.
Even if Mr. Panafort receives a Presidential pardon for federal tax fraud, the state can still prosecute him for state tax fraud. It’s not double jeopardy, because each charge contains an element not contained in the other.
The overwhelming majority of cases that both the state and federal governments can prosecute will fall into this category. There’s a reason it’s taken several years for SCOTUS to receive a petition in a case that cleanly addresses the separate sovereigns doctrine (and why Mr. Gamble’s attorneys went to great pains in that petition to stress that this was a “clean case”).
Will cases exist in which a Presidential pardon could bar state prosecution, if the separate sovereigns doctrine is overturned? Yes. It would have saved Mr. Gamble, for instance. But these cases are likely to be so few and far between as to be highly unusual – and I predict that anyone the current President wishes to pardon is likely to face non-double-jeopardy state charges anyway.
Are the conservatives really going to overturn the separate sovereigns exception?
My prediction: If the Court overturns the separate sovereigns exception, the vote will not be along political lines.
The strongest support for that position appears in the last case in which the Court considered the “separate sovereigns” question, Puerto Rico v. Sanchez Valle. There, the Court looked at whether Puerto Rico had sovereignty separate from the U.S. federal government (the Court’s answer: no).
Justice Ginsburg wrote a concurring opinion in which she pointed out that sooner or later, the Court needed to address the question of double jeopardy as it related to being prosecuted by both the state and federal governments – and she signaled that the exception may be overdue for retirement. Justice Thomas joined that opinion.
The Court may or may not overturn the exception, but there is no reason, currently, to think it would do so along conventionally-accepted political lines.
In fact, the separate sovereigns exception is fascinating precisely because it is so hard to come to a conclusion on based on traditional political leanings: its existence supports a certain type of bounded federalism that conservatives and libertarians traditionally support, but at the cost of increased police intervention in individuals’ lives and a counterintuitive reading of the Fifth Amendment, which they traditionally eschew.
Is there a good reason to support (or to oppose) getting rid of the separate sovereigns exception?
Off the top of my head, the biggest to support getting rid of it is fewer prosecutions: you’d be prosecuted in state or federal court, but not both. It’d also make the prohibition against double jeopardy clearer to ordinary folks, although it’s not going to make it exactly clear.
Reasons to support keeping it include that it’s a 150+ year old component of our federalist system, one that arguably supports the concept that the states really do have powers the federal government does not within their own borders. There’s a chance that ending it would have unforeseen consequences for the balance of power between the states and the federal government, which may not tilt in the favor of individual liberty.
It’s not an easy question, either way. But I do look forward to seeing which justices have what things to say about it after oral arguments.
I no longer practice law and this post isn’t legal advice, but feel free to share a coffee with me anyway.
Dani Alexis 
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