The double jeopardy clause is one of the foundations of our criminal justice system. The Fifth Amendment guarantees that you can’t be prosecuted twice for the same offense. If you’re charged with a crime and a jury finds you not guilty, the prosecution doesn’t get another shot. Without this protection, the prosecution could simply keep coming after you, and your right to a fair trial would be rendered worthless.
However, there is one major exception to the double-jeopardy rule: sovereign governments can each prosecute you for the same crime. If you were convicted of drug trafficking by a foreign country, the U.S. federal government could still prosecute you for the same drug trafficking activity (assuming they had jurisdiction to do so).
Likewise, because U.S. states are each separate sovereigns, you can be prosecuted for the same conduct in multiple states (again, assuming each has jurisdiction).
The Supreme Court weighs in
In a recent decision, the Supreme Court affirmed this double-jeopardy exception – called the “dual sovereignty doctrine” – as it applies to state and federal governments. The case, Gamble v. United States, involved a felon in possession of a firearm. The defendant was first prosecuted by Alabama state authorities. He was convicted and sentenced to a year in prison. Meanwhile, the feds pursued charges against him for the same act of possessing a firearm. They secured a conviction, and the defendant was sentenced to nearly two years in prison (to run concurrently with his state sentence).
The Supreme Court noted that the double jeopardy clause applies to offenses, not conduct. State and federal authorities can prosecute a defendant for the same underlying conduct. They’re not technically the same offense since they involve violations of two separate penal codes. And because the federal government is a separate sovereign from state governments, the dual-sovereignty exception applies.
The impact on Trump’s associates
The decision has huge implications for Trump associates who have been convicted on federal charges. It affirms that they can still face criminal prosecution at the state level.
As noted in the Mueller report, Trump has made comments about potentially pardoning three associates who were convicted on federal charges:
- Paul Manafort, his former campaign chair
- Michael Cohen, his longtime attorney
- Michael Flynn, his former National Security Advisor
His presidential pardon power only extends to federal convictions.
In March, the New York State Assembly passed an exception to their state-level prohibition on double jeopardy, clearing the way for charges against Trump associates for criminal activities that took place in that state. (Trump’s business and campaign are headquartered in New York.) Manafort is already facing state charges. His defense took a hit with the recent Supreme Court decision; his attorney had sought to dismiss the charges on grounds of double jeopardy.
The decision strikes a powerful blow to Trump’s ability to shield his associates. It also sheds light on the judicial dispositions of his two appointees. While Gorsuch wrote a weakly reasoned dissent, Kavanaugh joined in the majority decision upholding the double-jeopardy exception.