Republicans are suddenly very, very interested in double jeopardy law
At this moment, a case making its way through the court system is garnering an unusual amount of attention. It’s a case about a convicted robber in Alabama who was found in possession of a gun and charged by both state and federal authorities. For 150 years, the Supreme Court has held that these kind of cases, where a violation can be prosecuted under both state and federal laws, don't violate the Constitution's prohibition against double jeopardy. That's because state, federal, tribal and the military justice systems correspond to/are separate sovereigns.. But as The Atlantic reports, Republicans have developed a sudden interest in just this type of case.
Utah lawmaker Orrin Hatch, who sits on the Senate Judiciary Committee, filed a 44-page amicus brief earlier this month in Gamble v. United States, a case that will consider whether the dual-sovereignty doctrine should be put to rest.
Republicans, always talk a good game about promoting the sovereign right of states … so long as what the states are doing agrees with them. But here Hatch is willing to take a power away from every state. And why would that be? Two words: Mueller investigation.
The ability of states to charge someone with state crimes, even if that someone has been charged with federal crimes related to the same incident represents a considerable amount of leverage within the investigation into Trump’s campaign and associates. Though New York currently has its own double jeopardy law that would prevent recharging on some of these incidents—which is something any state could do—the charges applied to Paul Manafort and others through the special counsel’s office have often seemed tailored to leave openings for state charges in case of a Trump pardon. It’s a big part of what’s made Robert Mueller’s indictments “pardon proof.” The threat of separate state proceedings is an effective inducement to cooperate in exchange for a big reduction in sentencing.
Republicans are hopeful that if Gamble shuts down the option to recharge at the state level, anything where Mueller brings a federal charge will be off the table for the states. Of course, Mueller has already worked directly with attorneys general at the state level in discussing and planning some cases with this in mind. It’s seemed that, from the beginning, the special counsel has proceeded with the understanding that Trump might pardon anything. But with the possibility of Gamble coming in and Rosenstein going out, hanging on to the agreements that Mueller has secured might be difficult … especially if there is no Mueller.