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On 29 November 2015, a motorist named Terance Gamble, who had been convicted of second degree robbery seven years earlier, was pulled over by an Alabama police officer because of a faulty headlight on his vehicle. Upon searching the car, the officer found a handgun, among other items. It is illegal under both Alabama law and United States law for convicted felons to possess firearms, and Gamble was eventually sentenced to one year in prison on that charge by the state of Alabama. During Gamble's prosecution under Alabama law for possession of a firearm as a felon, the Federal Government also charged him with the same crime. Gamble’s lawyers argued that this second conviction was a violation of the U.S. Constitution’s ban on double jeopardy, which is intended to protect people from being prosecuted for the same crime more than once. The double jeopardy clause is found in Fifth Amendment to the U.S. constitution, which states (in part) that No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb. Specifically, the clause has been interpreted to be a prohibition on: Gamble has been in federal prison since entering a guilty plea on 18 October 2016 that allowed him to appeal his case. In June 2018, the Supreme Court agreed to hear his argument that he has been unconstitutionally punished multiple times for the same crime. While the case is about the constitutionality of a man being charged twice for the same gun possession incident in a narrow sense, the case more broadly has the potential to significantly alter 150 years of Supreme Court precedent. Since the 1850s, the Supreme Court has allowed for one explicit exception to the Constitution’s double jeopardy protections: cases of dual sovereignty (or separate sovereigns) which stem from view that the federal government and state governments are distinct entities with occasionally overlapping jurisdictions. (Exceptions to this exception exist which seek to limit double prosecutions at the federal level, but as this case shows they do not always have that effect.) This separate sovereigns exception to double jeopardy, though built on several previous rulings, was made most explicit in a 1920s bootlegging case, United States v. Lanza, which allowed a man to be charged with bootlegging crimes by both the state of Washington and the federal government. With respect to that case, Chief Justice William Howard Taft argued: The separate sovereigns exemption has for much of its history been a controversial precedent which critics maintain is not rooted in the original text of the Constitution but is instead cobbled together from different partially relevant Supreme Court decisions -- decisions rooted in a time when the federal government was less powerful and whose questions never directly sought to address the explicit matter of double punishment for the same crime in state and federal jurisdictions. This argument is reflected in Gamble’s filing. The government argues in this case that the precedent is well-established through myriad Supreme Court cases and consistent with the Founding Fathers' vision of state and federal government duality: In this case, Gamble has explicitly asked the Supreme Court to rule on a single specific question: Whether the Court should overrule the separate sovereigns exception to the Double Jeopardy Clause. The reason Gamble v. United States is generating buzz from people other than constitutional law scholars is that the separate sovereigns exception also prevents President Trump from pardoning people for state crimes. Under current Supreme Court precedent, a presidential pardon of an individual does not prevent that individual from being prosecuted for the same or similar crimes under state law. Under the dual sovereignty doctrine, Adam J. Adler wrote in the Yale Law Review, as long as two offenses are defined by different jurisdictions, they cannot constitute the ‘same offense.’ The Congressional Research Service issued an August 2018 report on the potential ramifications of the case, and this report included a discussion of its possible effect on the presidential pardon power: Some pundits have speculated that the reason why certain politicians seem to be in a rush to seat Judge Brett Kavanaugh on the Supreme Court is that is that he has a notably strong view of presidential powers and therefore would be a vote in favor of Gamble and for an expansion of presidential pardon powers -- and the Supreme Court announced they would be hearing this case the day after Justice Kennedy’s retirement. This temporal proximity has prompted some commenters to opine that the rush might be motivated by a desire to limit the president’s legal liability in the Russia probe and other investigations: While we cannot speculate on the motives of politicians who are supporting Judge Kavanaugh's nomination, The Atlantic reported that prominent political legal scholars agree in a general sense with the view of this case’s having importance with regard to President Trump’s pardon power: The Atlantic also reported that at least one member of the Senate Judiciary Committee who approved Kavanaugh for a floor vote before the full Senate, Orrin Hatch, has publicly weighed in on the topic (unmotivated, he says, by the implications for the pardon power), filing an Amicus Curiae brief in favor of Gamble which argued that the pervasive federalization of criminal law to cover conduct that traditionally was prosecuted and punished by the states, and that falls within the states’ core legislative interests, threatens to undermine the protections of the Double Jeopardy Clause unless the dual sovereignty doctrine is overruled in this context. Oral arguments for the case have not been scheduled but will occur during this Supreme Court term. If confirmed, Judge Kavanaugh could become a deciding vote in the case.
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