Brett Kavanaugh, Double Jeopardy, And Presidential Pardons

Debunking a theory for why the Kavanaugh nomination was supposedly "rushed."

During the battle over Justice Brett Kavanaugh’s nomination, several pundits, and several people who comment here at Outside The Beltway, made note of a case currently pending before the Supreme Court as one explanation for why Republicans were seemingly rushing to confirm Kavanaugh. This theory was based on a case called Gamble v. United States that deals with the Double Jeopardy Clause and the question of whether someone tried for a criminal act in Federal or state court can subsequently be tried again based on the same set of facts in another court

The Double Jeopardy Clause seems pretty straightforward. It says “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” By its text, the meaning of this provision of the Constitution seems pretty straightforward. It basically says that a person cannot be tried twice on the same set of facts for the same offense. This means, for example, that a prosecutor cannot obtain an indictment for murder against a person and if they fail to convict on that charge, turn around and reindict the same person for manslaughter or some other form of homicide. It also limits the extent to which a prosecutor can bring multiple unrelated charges against the same Defendant after they’ve been acquitted of the underlying offense. There are exceptions to the rule, but they are generally limited and extremely hard for prosecutors to obtain absent compelling evidence, such as evidence of a fraud on the court such as jury tampering or some other action that essentially made the first trial a fraud. The most common exception, of course, is in a case that ends in a mistrial due to a hung jury or some other circumstances that prevented the trial from coming to a final verdict. In those cases, the prosecution is generally permitted to retry a Defendant on the same, or additional, charges unless it can be established that the mistrial was due to prosecutorial misconduct of some kind. As a general rule, though, the Double Jeopardy Clause stands for the proposition that prosecutors only get one “bite at the apple,” and if they’re unable to prove guilt beyond a reasonable doubt then they can’t turn around and retry the Defendant again, even if they obtain evidence after the trial that clearly indicates the Defendant’s guilt. It also applies to Defendants who have been convicted of a crime under a specific set of facts and bars prosecutors from attempting to retry the case under more serious charges to increase the punishment the Defendant received.

The one major exception to this rule has been what has come to be called the “separate sovereign” rule, which essentially allows a Defendant to be tried under the same set of facts in both state and Federal court even if he has already been tried, acquitted, or convicted on the charges in one jurisdiction. This exception to the rule was established by the Supreme Court in a 1959 case called Abbate v. United States 359 U.S. 187 (1959), although it was actually first stated by the Court 37 years earlier in a case called United States v. Lanza 260 U.S. 377 (1922). In Lanza, a case which arose during the Prohibition era, a Defendant was prosecuted and convicted of making, transporting, and selling intoxicating liquors in violation of Washington state law. He was subsequently charged with violating the National Prohibition Act under the same set of facts. The Supreme Court ruled in that case that this subsequent Federal prosecution did not violate the Double Jeopardy clause essentially because the states and the Federal Government are separate entities and that prosecution by one does not rule out prosecution based on the same set of facts by the second. In Abbate, the Defendant was “part of [a] conspiracy to blow up multiple facilities owned by the Southern Bell Telephone Company. He was convicted in Illinois under a state law making it a crime to conspire to destroy the property of another and sentenced to three months of imprisonment. Thereafter, Abbate was indicted in [a] federal district court for a violation of federal law stemming from the same conspiracy.” (Source) Abbate’s attorney asked the Court to reconsider the ruling in Lanza that had established the dual sovereign doctrine, but the Court declined to do so.

In recent years, though, this exception to the Double Jeopardy Clause has come under serious criticism from legal scholars and even some of the current Justices on the Supreme Court, thus leaving open the possibility that it could be vulnerable to a challenge under the right set of facts. Therefore, when it was announced at the end of the last Supreme Court term that the Court would take a case that seeks to challenge the exception many observers were left wondering if this would mean the end of the exception to the Double Jeopardy Clause. With specific reference to the Kavanaugh nomination, many pundits argued that striking down the exception could make it harder to for states, specifically, New York, to prosecute people associated with the Trump Administration in the event that the President issues pardons to former associates such as Michael Flynn, Paul Manafot, and others connected with the campaign who have been ensnared in the Russia investigation.

As Ken White at Popehat explains, though, this theory doesn’t really hold up because the actual impact on both separate prosecutions under the Double Jeopardy Clause and the reach of the Presidential pardon power of a ruling in favor of the defendant in Gamble is likely to be far more limited than some are suggesting:

[President Trump’s] pardon would only prevent state prosecution for the same crime that Trump pardoned them for federally. What’s the “same crime?” Under the so-called Blockburger rule, two crimes are not the “same” if each one requires proof of an element that the other does not — that is, if each has at least one unique element. So: Trump’s pardon can only prevent state prosecutions to the extent the state crimes have the same elements as the federal crimes he’s pardoning. They usually don’t. Gamble, the litigant in the case before the Court, points this out himself:

Because this Court deems two crimes to be different offenses any time “each offense contains an element not contained in the
other,” Dixon, at 696 (discussing Blockburger, 284 U.S. at 304), it will still be the unusual case in which the federal and state governments may not both bring some charge based on the same criminal occurrence.

Similarly, the Thurgood Marshall Civil Rights Center filed a friend of the Court brief in support of neither party laying out historical issues for the Court. That Center has a historical interest in civil rights laws, which have often involved Dual Sovereignty Doctrine prosecutions (as it did in the Rodney King case). The center concurs that overturning the doctrine would not prevent dual prosecutions:

Under Blockburger v. United States, federal civil rights statutes concerning law enforcement misconduct are not the “same offense” as State statutes that may cover the same or similar underlying conduct. Thus, overruling dual sovereignty should not eliminate the federal government’s ability to prosecute these types of civil rights cases after the State has previously prosecuted a case that was tried to verdict.

So: even if Kavanaugh helps overturn the Dual Sovereignty Doctrine, Trump cannot insulate his underlings with pardons — particularly because many of them face uniquely state-law issues, like state tax violations or violations of other state laws. Could Trump pardons preclude state prosecution for some state crimes that are identical to federal crimes? Yes. But the notion that such state prosecutions are even in the works is purely speculative.

It’s also worth noting as White does that the criticisms that have been made about the dual sovereignty exception to the Double Jeopardy Clause do not fall along the traditional left-right dichotomy that the public is familiar with. Indeed, based on the fact that there have been comments critical of the doctrine and its potential for abuse from Justices currently serving on the Court from both the conservative and the liberal wings of the Court, it’s likely that a decision limiting the exception would not fall into the 5-4 range that controversial cases that reach the high court typically see, meaning that Justice Kavanaugh’svote on the issue would most likely not be decisive.

In any case, even taking into account the concerns about the impact that a ruling against the exception could have in the Russia investigation, as limited as it might be, the dual sovereign exception has always seemed like a piece of legal legerdemain that went against the clear language of the Constitution. This is particularly true in cases that involve areas of the law traditionally left to the states, such as murder and other similar crimes, that have suddenly become Federal crimes due to the determination that the defendant somehow violated the civil rights of their victim(s) in committing a crime that has traditionally been within the purview of states. When someone is acquitted of such a crime in state court, it seems deeply unfair on some level that the full power and authority of the Justice Department can be pressed down upon them for the same act that they were just acquited of having committed. Given that, limiting the ability of the state and Federal governments to get a second bite at the apple just because they brought charges in Federal rather then state court seems like a proper application of the Double Jeopardy Rule.

In any event, the final nail in the coffin of the idea that the Gamble case was the reason that the Kavanaugh nomination was pushed forward is the fact that this case has not even been scheduled for oral argument yet. There was no reason to rush the Kavanaugh nomination that was directly connected to the Gamble case. Leaving all that aside, the Gamble case does raise important Constitutional issues and it will be interesting to see how the Court handles it. If you’re interested in reading some of the filings in the case, you can find them at the SCOTUSBlog information page for the case.

FILED UNDER: Law and the Courts, Supreme Court, US Constitution, US Politics, , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Daryl and his brother Darryl says:

    While I’m not altogether sure Gamble wasn’t a minor motivation, I’m fairly sure Dennison pardoning himself was the main motivation that landed Justice Boof on the Bench.

  2. Teve says:

    Gin and Tacos

    Yesterday at 3:07 PM ·

    The Venn Diagram of Kavanaugh supporters and parents who have been asked to leave a children’s sporting event for abusive behavior toward the officials and/or challenging another parent to a fight is a single overlapping circle.

  3. Jen says:

    Thank you for the explanation and links.

  4. Barry says:

    Doug, please name a charity. I’ll wager $100 that in the next case heard by SCOTUS, Brett will rule in favor of limiting investigations into the President.

    I’ll wager another $100 that in the first case during the next Democratic administration Brett supports investigations of the President.

  5. James Pearce says:

    many pundits argued that striking down the exception could make it harder to for states, specifically, New York, to prosecute people associated with the Trump Administration

    Any effort to keep the SDNY from prosecuting Trump admin figures is worthwhile.

    Win elections. It’s the only way.

  6. Facebones says:

    They went all in on Kavanaugh because if they pulled him and restarted the process with some other Heritage Foundation clone they wouldn’t have finished before the midterms. There’s about a 1 in 3 chance (according to that Democrats retake the Senate, and then they could block any future nominees.

    That’s it. No need to mine facebook for dank meme conspiracies.

  7. gVOR08 says:

    The question of whether the double jeopardy thing would make any difference to Trump and his accomplices is a different question than whether Trump and his accomplices know it would make no difference.

  8. An Interested Party says:

    Any effort to keep the SDNY from prosecuting Trump admin figures is worthwhile.