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Could Supreme Court’s double jeopardy case reverse 170 years of precedent?

A Supreme Court case is challenging a long-held interpretation of the Fifth Amendment’s ban on prosecution for the same crime twice, known as double jeopardy. The National Law Journal's Marcia Coyle joins Amna Nawaz to explain the 170-year-old “separate sovereigns” exception, what questions the court had during arguments and why the case draws attention to the special counsel’s Russia probe.

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  • Amna Nawaz:

    The highest court today heard a case concerning the Fifth Amendment's ban on prosecuting someone for the same crime twice.

    The justices were asked to rethink decades-old precedent that allows for prosecution of the same crime if it's in state and federal courts.

    To explain what happened in the Supreme Court today, I'm joined by a "NewsHour" regular, Marcia Coyle. She is chief Washington correspondent for "The National Law Journal."

    Good to see you again.

  • Marcia Coyle:

    Good to see you.

  • Amna Nawaz:

    So, the case before the Supreme Court, what is this about?

  • Marcia Coyle:


    Terance Gamble is an Alabama man who was first convicted in state court for the crime of a felon in possession of a firearm. After that, he was tried and convicted in federal court of the same crime. He appealed, saying that the double successive prosecution violated the double jeopardy clause of the Fifth Amendment, which, as you just explained, prohibits trying someone twice for the same offense.

    He lost his appeals because of that 170-year-old exception to the double jeopardy clause known as the separate sovereign exception. That is, if two sovereign states — and the United States, they are allowed to do the double prosecution or two states, which are also separate sovereigns, they could do it as well.

    He brought the case to the Supreme Court that the justices heard today. And his lawyer basically is saying, look, this exception is a court-created exception. It's not — it's inconsistent with the original understanding of the double jeopardy clause. It's not in the text of the clause, and it's inconsistent with the purpose of the clause, which is to promote fairness and finality.

  • Amna Nawaz:

    OK, so these double prosecutions, right, either state and state or state and federal, do we know — do we have any idea about how often these happen or what kinds of cases they usually occur in?

  • Marcia Coyle:

    Well, the Justice Department's attorney did argue today.

    And he said, first of all, that the department has a policy that limits its own successive prosecutions. Unless there's a very substantial federal interest, the government won't step in. And he said roughly 100 cases a year.

    And the kinds of cases in which you will — are most visible to us are in civil rights cases, for example. An example that he gave was federal murder charges stemming from the Charleston church massacre and the Pittsburgh synagogue massacre. He warned that if the exception were eliminated, they would not be able to — they would probably have to drop those charges.

    And, also, Native American tribes are supporting this exception, because they like to have the federal backup when it comes in particular to prosecution of domestic violence crimes against women on the reservations.

  • Amna Nawaz:

    So, based on what we heard from the justices today, based on the makeup of the court right now, do we have any idea which way this will go?

  • Marcia Coyle:

    Well, to be honest, I don't ever predict, but I didn't see a solid majority here to get rid of the exception to the clause, mainly because the justices focused very heavily on the practical consequences here, for example, the civil rights consequence, the Native American tribes consequence.

    But, also, as the government pointed out, there could be races to the courthouse by federal and state prosecutors to see who could file first if there was no exception, that it would deter cooperation among law enforcement, and also that criminal defendants might try to manipulate separate sovereigns to see where they might get the best trial outcome.

    So, they were very focused on that and concerned. And also, even though the defendant focused a lot on the original understanding, Justice Kagan pointed out, some justices on the bench believe that's the, she said, alpha and omega of every constitutional question. But others do not.

    She is not an originalist. And she said, you're going to have to give me something more before I'm willing to overturn a 170-year-old precedent.

    And, interestingly enough, one of the originalists on the court, Justice Kavanaugh, he said to the defendant's lawyer, yes, stare decisis, standing by precedent, is part of that original understanding. And you're going to have to show this precedent is not only wrong, but egregiously wrong, and that's a high bar.

  • Amna Nawaz:

    So one of the reasons a lot of people are paying very close attention to this case is because they believe it could have an impact on the Russia probe. That's led by special counsel Robert Mueller.

  • Marcia Coyle:

    That's right.

  • Amna Nawaz:

    The idea basically being, look, that's a federal prosecution. If people are convicted as part of that, then later pardoned by the president, that wipes the slate clean, there could not be a state prosecution top of that.

  • Marcia Coyle:

    Well, you just said it.


  • Marcia Coyle:

    That's exactly what they're worried about. And that's why people are watching this closely.

    Legal experts disagree on how this might affect successive prosecutions and also the impact of a presidential pardon on anybody that Mueller may prosecute and get convictions on. So, we're just going to have to wait and see, I think, on that how it plays out, as well as the Supreme Court decision.

  • Amna Nawaz:

    We will wait and see, indeed.

    Marcia Coyle, always good to see you. Thanks for being here.

  • Marcia Coyle:

    My pleasure.

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