This Is How Wrongheaded Claims Spread in Politics

This Is How Wrongheaded Claims Spread in Politics September 30, 2018

A friend shared a post by someone else claiming that the reason the Republicans are in such a hurry to get Brett Kavanaugh on the court is because they need him to vote to overturn the “separate sovereigns” doctrine that allows states and the federal government to prosecute for the same crime. The claim is that if they overturn this doctrine, it will mean Trump can pardon those around him for state cases as well as federal. Here’s the claim being spread around social media:

On next month’s SCOTUS docket is Gamble vs US. No 17-646. This is what the rush is about. Yes, they want him to overturn Roe, yes they want him to drag us all back, but they need him seated for October to rule on that specific case. At stakes is the “separate sovereigns” exception to double jeopardy. If he (and the other 4 conservative judges) vote to overrule it, people given presidential pardons for federal crimes cannot be tried for that crime at the state level. Bam. Trump can pardon the lot of them and they have nothing to fear from state’s attorneys.

We’re all looking at the shiny coin and not seeing the bigger picture.

This claim is absolutely false, for several reasons. The case involves an Alabama man who was tried twice for illegal possession of a firearm, once at the state level and once at the federal level. He filed suit, claiming that this violates the Double Jeopardy Clause of the 5th Amendment to the Constitution, which reads, “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb…” The Supreme Court has long held that because the federal government and state governments are “separate sovereigns,” they can try someone for the same crime without violating that provision. Gamble wants those precedents overturned.

So the claim is that the Trump administration wants the court to overturn the Separate Sovereigns doctrine so that his pardons will apply to state criminal cases as well as federal ones. But a quick look at the briefs filed in the case show this to be nonsense. First of all, the Trump administration, through the Solicitor General, is taking the exact opposite position. You can read their brief here.

Nor is this a simple matter of left and right. In the most recent precedent upholding the Separate Sovereigns Doctrine, Puerto Rico v Sanchez Valle, Ruth Bader Ginsburg wrote a concurring opinion, joined by Justice Thomas, that said:

I write only to flag a larger question that bears fresh examination in an appropriate case. The double jeopardy proscription is intended to shield individuals from the harassment of multiple prosecutions for the same misconduct. Current “separate sovereigns” doctrine hardly serves that objective. States and Nation are “kindred systems,” yet “parts of ONE WHOLE.” Within that whole is it not “an affront to human dignity,” “inconsistent with the spirit of [our] Bill of Rights,” to try or punish a person twice for the same offense?

So this is not a left or right issue. And frankly, regardless of the outcome of this particular case or how it affects Trump’s pardons, the Separate Sovereigns doctrine should be done away with. The ACLU takes that position, as do many other liberal groups. So let’s not spread this around like it’s true. The reason they want to hurry the Kavanaugh nomination through is because the midterms are coming soon and if the Democrats take control, they will have much more control over Trump’s nominees in general, including for the Supreme Court. There is no deeper conspiracy going on here, certainly not one involving this case.

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