Dec 6, 2018, 4:10 AM ET

Supreme Court case could strengthen Trump's pardon power


What began as a traffic stop for a faulty headlight has become a potentially precedent-shattering Supreme Court case with reverberations that could reach the White House.

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When police stopped Terance Martez Gamble in Mobile, Alabama, in 2015, officers searched his car and discovered a 9 mm handgun. As a convicted felon, Gamble was forbidden under both federal and state law from possessing a gun.

Authorities prosecuted Gamble for the offense. A state judge sentenced him to one year in prison and then a federal judge tacked on three more years. He'll be behind bars until February 2020.

Thursday the Supreme Court will consider whether the pair of convictions and punishments by state and federal governments is unconstitutional. Gamble's attorneys say his treatment violates the Fifth Amendment protection against double jeopardy.

"Contrary to the text, original meaning, and purpose of the Double Jeopardy Clause -- he must spend three additional years of his life behind bars," Gamble's attorneys wrote in their brief.

The legal arguments regarding the overlap of federal and state law enforcement have potentially big implications for a president’s pardon power.

The Gamble case is stirring speculation about the impact it could have on President Donald Trump and individuals he has hinted could soon receive pardons, including his former campaign chairman Paul Manafort.

“A win for Gamble could indirectly strengthen the President’s pardon power, by precluding a state from prosecuting an already-pardoned defendant who has gone to trial on an overlapping offense,” the independent Congressional Research Service concluded in an August 2018 analysis of the case.

PHOTO: Former Trump campaign manager Paul Manafort arrives at the Albert V. Bryan U.S. Courthouse for an arraignment hearing, March 8, 2018, in Alexandria, Va.Alex Wong/Getty Images, FILE
Former Trump campaign manager Paul Manafort arrives at the Albert V. Bryan U.S. Courthouse for an arraignment hearing, March 8, 2018, in Alexandria, Va.

A Trump pardon of Manafort after his convictions on federal bank fraud and tax evasion charges, for example, could hinder New York state authorities from prosecuting Manafort for violating state laws in committing the same offense. Special counsel Robert Mueller has been sharing information gathered during his investigation with state prosecutors, including the Manhattan District Attorney.

If the justices decide in favor of Gamble, “it could have a binding effect on the state level and expand the power of the pardon," said JP Schnapper-Casteras, a constitutional lawyer and former Supreme Court advocate for the Legal Defense Fund.

Constitutional scholars concede the issue would likely be litigated, and a presidential pardon's scope would only narrowly apply to the exact same crime under state law.

“It’s making a number of leaps down the road,” Schnapper-Casteras said, “but it is something to think about.”

The Fifth Amendment to the Constitution says that "no person shall ... be subject for the same offense to be twice put in jeopardy of life of limb," or double jeopardy.

For more than 150 years, however, the Supreme Court has treated state and federal governments as separate -- each with a distinct set of laws that can each be enforced, even when there's overlap. It's known in legal circles as the "separate sovereigns" exception to the Constitution's protection against double jeopardy.

PHOTO: Justices of the U.S. Supreme Court pose for their official photo at the Supreme Court in Washington, D.C., Nov. 30, 2018.Mandel Ngan/AFP/Getty Images
Justices of the U.S. Supreme Court pose for their official photo at the Supreme Court in Washington, D.C., Nov. 30, 2018.

“An individual state and the United States are two totally different sovereigns or legal entities," explained Christopher Riano, a lecturer in constitutional law and government at Columbia University. "Your actions could violate laws at a state level and the federal level."

The Trump administration Acting U.S. Solicitor General Jeffrey Wall warned in a brief to the Supreme Court that breaking that longstanding precedent would be highly unusual and disruptive.

It would "saddle courts with the confounding task of comparing different sovereigns' laws," Wall writes in his brief to the court, "and threaten the finality of convictions obtained in reliance on the long-held understanding that, in cases involving separate prosecutions by different sovereigns, it does not matter which sovereign goes first."

The Supreme Court is now taking a fresh look at whether dual prosecution for the same offense should be allowed.

"If the court were to say that the same offense concept and separate sovereigns concept no longer exist ... it would be a big deal if they overturned it," Riano said. "It would be a big shift.”

Such a decision would directly impact sentences for anyone convicted under both state and federal laws for the same offense -- likely shortening time behind bars and potentially freeing Gamble. Experts say it would also force improved coordination among state and federal officials on prosecutions and punishments.

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    Cases like this go to both state and feds and they together deside the time in jail

  • adamrussell

    Doubtful. If he has a pardon then he is in no jeopardy. So a 2nd prosecution cannot be double jeopardy.

  • Nala

    a convicted felon with a gun and trump expects to pardon him over and above the STATE CHARGES???? this will ELIMINATE states rights! ! !

  • Erwin Schrodinger

    I can see the argument...

    Interesting that Mueller has held off on prosecuting some charges... maybe those could be left alone and pursued solely at the state level? I am sure there are many Manafort actions that they could reinvigorate and launch at the state level and not pursue at all at the federal level... so many to choose from.

  • Jake real Jake

    Donnie Jr. no pardon. Is he the stupid one or is it Eric?
    Lock Him up!

  • Chuckie M

    This is an extremely weak argument. Good Luck.

  • John S. Henchey

    Looks like Trump got his boy, Kavanaugh, in there just in time.

  • FlaGirl

    I think the two sex abusers on the Court will be in favor of more power for the orange sex abuser. So hopefully the decent man will make sure that the Russian profiteer's charges in state and federal courts do not overlap. Not to name names or anything.

  • Cammosutra

    It is interesting the court would even take this case.

  • TexasVulcan

    Was it the exact same crime he was accused of in both cases? If so, they should have combined the cases and come to a real conclusion.

  • GayEGO

    If SCOTUS makes a partisan decision in favor of Trump, they are violating our justice system.

  • snake

    With this Supreme Court it won't take long to make the president an absolute monarch. How will they undo such a ruling when a Democrat is in office? Will they need to do what Wisconsin and Michigan are doing by changing the law when that occurs? It won't be long before we are a Banana Republic.

  • Truthfully

    The use of a pardon should be used very Carefully.

    Trumps offering his pardons for crimes committed against the American Citizens by trumps crooked friends.

    What could go wrong?

  • John Springer

    It does seem unfair to me .

  • Friend Smith

    Wouldn't trump's pardon of a friend who won't testify against him be proof of obstruction of justice?

  • Ctrygrl

    Don't see how this could possibly apply to Manafort. Breaking state laws and breaking federal laws are an entirely different thing

  • Matt

    Terence Martez has the resources to take his case all the way to the Supreme Court?

  • Thomas

    I am surprised this is even an issue. Double Jeopardy applies when a person is convicted of the same crime -- meaning the same action applied to the same statute.

    In a state and federal case, while the action is the same, the statutes are different and the governmental bodies involved in separate sovereignty -- States handle state issues and the Feds handle Fed issues. Each government body conducts their own separate trial as, rightfully, there are two separate statutes that have to be proven in court.

    We already have instances of, at the state level, of people being convicted of separate crimes based on the same action. Chris Watts killed his wife and two daughters but was convicted of five separate murder charges. Killed three but charged with murdering five. The reason this is legal is that despite it being the same set of actions, there are separate statutes that were violated. This does not count as double jeopardy.

  • Not Fancy

    Double jeopardy would not apply to separate and distinct state charges that were not litigated by the feds.

  • Sacredfeminine

    This is the case for which he te ruited Kavanaugh.

  • WGS

    seems like it could be a major downgrade in states' rights, etc. further usurpation of local authority by the federal government and all. "same offense"? well, i'd think that offense is determined by law, and that separate law thereby creates separate offense - which would be the separate sovereigns mentioned.

    seems like once again logic and law might not play nice together....

  • Frank

    Weak analysis. The case allegedly strengthens Trump's power, but the Trump administration is fighting against it. Seems like you're missing a piece of the puzzle here. Or making up a story to scare readers about boogeyman Trump pardons.