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Manafort Shadow Looms Over Supreme Court Double Jeopardy Case

Dec. 5, 2018, 9:45 AM

Terance Gamble’s gun prosecution has nothing to do with Russians, elections, or hush money, but his U.S. Supreme Court case could impact Paul Manafort and others ensnared by the special counsel probe.

Gamble, whose case will be heard Thursday, was convicted in both state and federal court in Alabama for the same 2015 gun possession. He argues his second prosecution violated the Fifth Amendment’s double jeopardy clause, which says people can’t be “twice put in jeopardy of life or limb” for the “same offence.”

Courts have allowed such double-prosecutions under the longstanding “separate sovereigns” exception.

But the timing of the case has sparked speculation about how it might affect those facing charges as a result of Robert Mueller’s investigation, especially those who might be pardoned federally but still face state charges.

Before Gamble’s case came to the court, concern that President Donald Trump would issue pardons to Mueller probe targets had been alleviated, somewhat, by the prospect of state prosecutions because the president can only forgive federal crimes.

But “if the Supreme Court reverses longstanding precedent and rules in favor of Gamble, then the real prospect exists that a presidential pardon of Paul Manafort or anyone else in the Trump orbit could, for the first time, also bar prosecution under state law,” said Michael M. Conway, a former House Judiciary counsel during the President Richard Nixon impeachment inquiry.

“This is particularly true if the pardon given to Manafort or another person is extremely broad and pardons them from all offenses under federal law,” he said. “It will then be exceedingly difficult for a state prosecutor to identify a state-based claim which can still be prosecuted if the Supreme Court rules that the prosecution based on the same elements is barred by the double jeopardy clause.”

Yet the extent to which a decision in Gamble’s favor would actually benefit any Trump associates is far from certain.

That’s because double jeopardy issues revolve around more than just the precise legal question in Gamble’s case, legal scholars told Bloomberg Law. The charges against Manafort in particular seem broad enough to leave open state prosecutions, including for state tax crimes that federal pardons can’t touch.

One Gun, Two Charges

Gamble was pulled over for a faulty headlight and found with a handgun. He was a felon already, which makes gun possession illegal. The state charged him first, then the federal government.

But the Constitution allows that second prosecution, the U.S. Court of Appeals for the Eleventh Circuit said in rejecting his double jeopardy claim, citing the sovereignty exception.

The exception has drawn ire across the political spectrum, including defense attorneys and law professors, and even justices Clarence Thomas and Ruth Bader Ginsburg. Sen. Orrin Hatch (R-Utah) filed a brief supporting Gamble at the high court.

Now the double-prosecution rule is in the high court’s crosshairs, and the justices could use Gamble’s case to strike it down. A ruling in the case, Gamble v. United States, is expected by late June.

It gives the justices “the rare opportunity to correct 150 years’ worth of faulty interpretation of the Constitution,” Stephen E. Henderson of the University of Oklahoma College of Law told Bloomberg Law. He and other scholars filed a brief supporting Gamble.

Twice Convicted

Manafort was twice convicted in federal court on bank and other fraud charges this year as part of the Mueller investigation into Russian interference in the 2016 election.

Conway said that Manafort could be charged with bank fraud in Illinois state court, but that such a prosecution could be precluded if the Supreme Court rules for Gamble.

The pardon prospect gained even more traction recently, with new allegations that Manafort lied to federal prosecutors and Trump saying a pardon isn’t off the table for his ex-campaign-head.

Still Jeopardy in Trump World

But a win for the Alabama convict wouldn’t necessarily help those like Manafort who might secure presidential pardons. It depends what charges state prosecutors would try to bring. Some state charges could even be barred under states’ own double jeopardy laws regardless what the Supreme Court does in Gamble.

The court’s 1932 decision in Blockburger v. United States says the test for double jeopardy is whether each statute under which a defendant is prosecuted requires proof of an additional fact that the other does not.

“For Gamble to matter, the second prosecution would have to ‘fail’ the Blockburger test,” Harry Sandick told Bloomberg Law.

Sandick was a prosecutor for the Southern District of New York, where Cohen pleaded guilty to campaign finance crimes Aug. 21, the same day Manafort was convicted in Virginia. A Manafort spokesperson didn’t immediately respond to a request for comment.

“Otherwise, a second prosecution would still be permitted in many states,” said Sandick, now a white collar defense attorney at Patterson Belknap Webb & Tyler LLP.

The Blockburger test “leaves the states a lot of room to bring charges after a federal conviction, acquittal, or pardon so long as the federal and state charges each has an element the other does not,” said Pace Law School professor Lissa Griffin.

University of Minnesota Law School professor JaneAnne Murray agreed, noting that Manafort “could also face state tax fraud charges, which—though related to the federal tax charges—are a separate offense against the states in which he filed state returns.”

Yet even if the court’s decision in Gamble winds up preventing some prosecutions that would’ve otherwise been allowed, that’s simply what the Constitution demands, Henderson observed. “The Framers intended that courthouse door remain firmly closed.”

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at