A majority of Supreme Court justices sounded unlikely Thursday to overturn more than a century of doctrine that allows states and the federal government to prosecute someone for the same criminal conduct, reports the Washington Post. While it went unmentioned during oral arguments, the case has implications for any pardons that President Trump might issue for those prosecuted by special counsel Robert Mueller and convicted in federal court. Under the status quo, states might still be able to prosecute under their own laws those who receive a presidential pardon, which applies only to federal charges.
Usual ideological pairings were scrambled as the court discussed the Double Jeopardy Clause of the Constitution’s Fifth Amendment, which says no one shall be “subject for the same offense to be twice put in jeopardy of life or limb.” The doctrine allowing dual prosecutions in state and federal courts is an exception to the prohibition, recognized by the Supreme Court since the 19th century. Justice Ruth Bader Ginsburg had called for a fresh look at the “separate sovereigns” doctrine and described it Thursday as a “double-whammy” for criminal defendants. The colleague most outspoken in apparent agreement with her was conservative Justice Neil Gorsuch. Most adamant on the other side of the issue were conservative Justice Samuel Alito Jr. and liberal Justice Elena Kagan. Kagan demanded that Louis Chaiten, a lawyer representing an Alabama felon, explain why the court should not apply its usual standard of letting decided issues stand. New Justice Brett Kavanaugh, who during his confirmation hearings was repeatedly questioned about whether he would abide by the court’s established decisions, joined Kagan. Chaiten said,“This rule is egregiously wrong.”