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Justices Unlikely to Overturn Separate Sovereign Exception to Double Jeopardy

By George Khoury, Esq. | Last updated on

This week, after the High Court closed for a day to honor the late President Bush, it heard arguments in the highly-watched Gamble case, which involved a rather risky challenge to settled Supreme Court precedent involving the separate sovereign exception to double jeopardy.

One of the reasons this case has become so highly-watched is due to the potential implications it could have for Paul Manafort, or anyone else connected to President Trump that may face federal charges and could benefit from a pardon. While Gamble's case is definitely a little bit different, his appeal hinges on the High Court ruling that the separate sovereign exception is unconstitutional and violates the very principle behind double jeopardy.

Triple Jeopardy?

Given the tenor of the Justices' questioning, it seems that Gamble's argument is doomed. He was pulled over for a broken tail light, which led to the discovery of marijuana, a digital scale, and a gun. He was convicted on state drug and gun charges, and again on federal gun charges. He appealed the federal gun charges, on the basis of double jeopardy, which added an additional three years to his sentence.

Unfortunately for Gamble, in addition to convincing the Justices that his federal charges were unconstitutional, he also had to convince them to go against decades of precedent that could have grave implications for prosecutions of foreign crimes against American citizens.

And while the expected result may seem to be excessive and unjust in Gamble's case where he is in fact being punished twice for the same crime, the issue appears to have brought together Justice Ginsburg, Thomas, and Gorsuch in agreement that the separate sovereign doctrine could use a "fresh examination."

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