Prosecuting federal hate-crime charges after events such as mass shootings could get trickier if the U.S. Supreme Court rules for the defendant in a case getting more notice for its potential impact on President Donald Trump’s pardon power.

Justice Ruth Bader Ginsburg and a U.S. assistant solicitor general referred to that possibility during oral arguments Dec. 6 in Gamble v. United States. The ruling may also affect whether white supremacist James Fields can be tried on federal charges after being convicted of murder in state court for his role in last year’s “Unite the Right” rally in Charlottesville, Virginia.

Defendants like Fields—facing federal hate-crime trials after state trials—"are sort of praying for Gamble to win,” said Laurie L. Levenson, a former federal prosecutor and now a professor at Loyola Law School in Los Angeles. “It gives them a kernel of hope.”

Terance Gamble’s appeal of his conviction on gun charges challenges an exception to the Fifth Amendment’s double jeopardy clause that allows prosecutions for the same offense in both state and federal court.

“Do you know how that would work for the civil rights cases?” Ginsburg asked Gamble’s lawyer, Louis A. Chaiten, during the oral arguments.

The high court’s 1932 decision in Blockburger v. United States says the test of double jeopardy is whether each statute under which a defendant is prosecuted requires proof of an additional fact that the other does not. Without the rule known as dual sovereignty, a federal hate-crime prosecution after a state trial “might fail a Blockburger test,” Adam H. Kurland told Bloomberg Law.

Kurland, a professor at Howard University School of Law in Washington and an expert on dual sovereignty, filed a brief with the Supreme Court in the case on behalf of the school’s Thurgood Marshall Civil Rights Center. The brief focuses on the importance of federal civil rights prosecutions brought after acquittals in state court, like in the case against the Los Angeles police officers who beat motorist Rodney King.

Chaiten told the high court that the federal law used in the King case wouldn’t be the “same offense” as the state charge, meaning it would be permitted under Blockburger.

Hate-crimes like what Fields is charged with overlap more with state law, creating more of a potential Blockburger issue, said Kurland, a former federal prosecutor.

Pittsburgh, Charleston Cases

Ginsburg raised the argument that “there are no state law counterparts” to the federal law used in the King case—meaning it would not be the “same offense” under a double jeopardy analysis.

“Your Honor, those aren’t the only civil rights charges we bring,” the assistant to the solicitor general, Eric J. Feigin, said.

He pointed to “the recent shootings of the synagogue in Pittsburgh and of the African-American church in Charleston,” saying charges “could be Blockburger barred” without the dual sovereignty exception.

Feigin pointed to one of the statutes in Fields’ federal case. “Your Honor, there are civil rights offenses on the books now, like 18 U.S.C. 249, which . . . criminalizes causing bodily injury to someone for racially motivated reasons that could be double jeopardy barred under their rule,” he said.

A former Department of Justice attorney who investigated the Ferguson, Missouri, police department agrees that hate-crime laws could come closer to a double jeopardy violation than other civil rights prosecutions if Gamble wins.

The federal law in Fields’ case “was modeled on some state statutes and is very similar to some state laws in a way that” the law used in the King case is not, Jonathan M. Smith told Bloomberg Law. He was chief of DOJ’s special litigation section of the civil rights division from 2010 to 2015. He is now executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs.

Apart from its impact on hate-crime prosecutions, the Gamble decision could impact whether pardons Trump might give targets of special counsel Robert Mueller’s probe could prevent state charges against them. Among those affected could be Trump’s former campaign chairman, Paul Manafort.

Race to the Courthouse?

During the Gamble argument, Chief Justice John G. Roberts Jr. raised the concern that, if dual sovereignty is abolished, there could be a “race to the courthouse” between state and federal governments to see who gets to try certain cases.

That’s “a real concern,” Kurland said.

A rush to prosecute could result in a failure to secure a conviction, leaving the second sovereign unable to pursue charges. Even in cases that result in convictions, the “race” could be a matter of life and death, as in Fields’ case, where he faces life imprisonment in state court but the death penalty federally.

In the prosecution of Charleston church shooter Dylann Roof, the federal government went first, unlike in the Fields case.

“There was a lot of bitterness in Charleston over who would go first because the state prosecutor was very concerned about not wanting to subject the family members to have to go through the grueling pain of two trials,” Kurland noted, adding that the state prosecutor expressed frustration about “steamrolling” by federal officials. Once Roof got the federal death penalty, the state let Roof plead guilty, Kurland said.

“I do think that the ability for there to be a second prosecution by the federal government is an important right to maintain,” said Smith, the former Justice Department civil rights official. “But I also think that’s something that ought to be exercised extremely rarely.”