Washington • Sen. Orrin Hatch is weighing in on a Supreme Court case that could have far-reaching consequences on the judicial system and possibly affect the investigation into Russia’s interference in the 2016 elections.
The Utah Republican, a former Senate Judiciary Committee chairman, filed a 44-page brief in the case of Gamble vs. the United States that deals with the long-standing precedent that charges can be filed against someone both in federal and state court, an exception to the Constitution’s protection against “double jeopardy.”
While the Fifth Amendment’s double jeopardy clause guards against a person being prosecuted twice for the same crime, federal and state charges can still be applied because they are different sovereign entities with separate laws.
Hatch is backing the petitioner, Terance Martez Gamble, a convicted felon who was found possessing a firearm in Alabama, and charged in federal and state court — a double whammy his attorneys say violates his constitutional protections.
The Utah senator says the exception should be overturned because of an expansive judicial system where a crime can be covered by both federal and state laws.
“The extensive federalization of criminal law has rendered ineffective the federalist underpinnings of the dual-sovereignty doctrine,” Hatch’s brief, filed last month, says. “And its persistence impairs full realization of the Double Jeopardy Clause’s liberty protections.”
Hatch, whose argument is backed by a group of law professors, says while he filed his brief Sept. 11, his support for getting rid of the exception to double jeopardy has been a long-standing position. He pushed back at any suggestion he was trying to protect President Donald Trump or his team from possible charges in special counsel Robert Mueller’s investigation.
Mueller has indicted or won guilty pleas in federal court from 32 people and three companies so far, but Trump has publicly suggested he may pardon some of his former top aides, including his one-time campaign manager Paul Manafort.
Manafort has been found guilty of tax and bank fraud and pleaded guilty to other charges. If Trump pardoned him and the Supreme Court sides with Gamble — jettisoning the exception to double jeopardy — state prosecutors would likely be unable to seek state-level charges and Manafort would walk free.
Trump cannot pardon state-level criminals, but if Gamble wins at the high court, it could have a chilling effect on what other charges could be brought against those targeted in the Mueller probe.
Hatch’s office says the senator has long sought reform of the criminal laws.
“Senator Hatch has worked for years to address the problem of over-criminalization in our federal code, and he welcomed the Supreme Court’s decision to reconsider the rationale for the dual-sovereignty doctrine in light of the rapid expansion of both the scope and substance of modern federal criminal law,” said Hatch's deputy chief of staff, Matt Whitlock.
The senator has for years spoken and lobbied to reform the criminal justice system, specifically strengthening laws to ensure there was an intent to commit a crime, though speeches, op-eds and other materials provided by his office do not mention the specific issue of reforming the double-jeopardy exclusion.
Whitlock says the senator joined the chorus of advocates for fixing the double-jeopardy exception to “restore the liberty protections” that should be afforded under the American system.
“While many in the media see longstanding legal battles strictly through the lens of the news of the day, the issue long predates the Mueller investigation and the investigation did not factor into Senator Hatch’s decision to file a brief in support of Mr. Gamble,” Whitlock said.
The Trump administration is defending the double-jeopardy exception, arguing in a court filing that the court has ruled consistently during the past 150 years that it protects the sovereign state and federal powers.
The government’s lawyers note that the court ruled in 1959 that a challenge to the double-jeopardy exception is “not a new question” having been “invoked and rejected in over twenty cases.”
“The court stated that to disregard a ‘long, unbroken, unquestioned course of impressive adjudication’ was not only unwarranted, but ‘would be a shocking and untoward deprivation of the historic right and obligation of the States to maintain peace and order within their confines,’” the lawyers wrote.
But it's one that prosecutors have wrestled with and defense attorneys have objected to for a long time.
Brett Tolman, a former U.S. attorney for Utah who has advocated for criminal justice reform, said he sees the principles of double jeopardy as “very important.”
“It’s always sort of been surprising to people that you can be prosecuted basically for the same set of facts, whether it’s in the federal system or the state system because they’re separate jurisdictions,” Tolman said in an interview. “We’ve seen an explosion of federal statutes over the past couple decades. Because of that, I think in large part because of the principles of fairness kind of dictate that you shouldn’t be prosecuted in both.”
Paul Cassell, a former federal judge and now a law professor at the University of Utah, made the same point in a brief submitted to the Supreme Court with three other law professors.
“At the founding [of the United States] and for several decades thereafter, a prosecution by one sovereign was understood to bar a subsequent prosecution by all other sovereigns," Cassell and the others wrote. "Dual sovereignty is thus contrary to the original meaning of the Double Jeopardy Clause. Defendants today enjoy a weaker form of double jeopardy protection than they did when the Bill of Rights was ratified.”
The Supreme Court agreed to take up the case in June and will hear it this session, which began Oct. 1.
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