This is an interesting doctrine that has stood for some 170 years and affirmed by many judges in the past but I have to ask why has it stood. If the 14th amendment guaranttees the rights and immunities of the constitution and the Bill of Rights flow from the US constittution, through the federal government down to state governments… why on earth would something as double jeopardy be a carved out exemption?
Today the Supreme Court will hear arguments in Gamble v. United States, a case raising the issue of whether the “dual sovereignty” doctrine should be overruled. The case involves Terance Gamble’s federal conviction for being a felon in possession of a firearm. Back in 2015, police stopped Gamble for having a broken tail light and found him possessing a firearm. Because he had previously been convicted of robbery, Gamble was thus a felon in possession of a firearm – a crime under both federal and state law.
Gamble pleaded guilty to the state version of the charge in Alabama state court, serving a one-year sentence. The matter seemed to be finished. But the Alabama U.S. Attorney’s Office filed the federal version of the charges against Gamble – same crime, same conduct. Gamble argued that the Fifth Amendment’s prohibition of double jeopardy barred this second prosecution. Lower courts, however, have ruled against Gamble, concluding that the “dual sovereign” doctrine allows separate sovereigns – in this case Alabama and the United States – to pursue separate prosecutions for the same crime.
This case has considerable impact on the Mueller investigations as well because if Trump should pardon someone Mueller has sentenced states like New York are ready to file state charges for the same crime…