U.S. Supreme Court in Washington, D.C. U.S. Supreme Court in Washington, D.C. Photo Credit: Diego M. Radzinschi/ALM

On June 28, the U.S. Supreme Court agreed to hear a case challenging the legal principle that the federal government and those of the states represent “separate sovereigns,” a long-held doctrine that has provided a work-around for state and federal prosecutors faced with constitutional double jeopardy concerns.

In the case, captioned Gamble v. United States, Terance Martez Gamble challenged prosecutions over charges of being a felon in possession of a firearm. Those cases—which resulted in convictions—were brought by Alabama state prosecutors and U.S. attorneys.

Gamble argued the dual convictions violated constitutional protection against facing double jeopardy for the same offense. He is currently serving nearly three additional years in federal prison beyond his Alabama state court sentence.

The decision by the nation’s highest cout comes at a critical moment for supporters of changes to New York’s double jeopardy protections that go beyond the Fifth Amendment. Lawmakers and the state Attorney General’s Office are pushing for the close of a so-called loophole that could serve as a kind of “get out of jail” scenario for those in President Donald Trump’s orbit. Under certain circumstances, individuals close to the president, facing federal prosecution, could see a pardon absolve them of not only federal charges, but bar state prosecutors from bringing a similar case under New York law.

New York, like many states, currently does not allow someone to be prosecuted on state charges after a federal pardon. New York’s loophole, according to the office of Attorney General Barbara Underwood, allows for a unique trick of the law: absent a specific exemption, if a defendant pleads guilty, or if a federal jury is sworn in at trial, state law bars charging that defendant over the exact same criminal acts.

One such exemption is if a court nullifies a prior criminal proceeding, such as when an appellate court vacates a conviction. However, state law does not speak to what happens if the president were to issue a strategically timed pardon under circumstances that triggered double jeopardy protections.

The issue was raised most recently when Trump pardoned conservative political activist Dinesh D’Souza in May. D’Souza pleaded guilty to campaign finance fraud before U.S. District Judge Richard Berman of the Southern District of New York, and was sentenced in September 2014 to five years of probation.

“We can’t afford to wait to see who will be next,” Underwood said in a statement at the time. “Lawmakers must act now to close New York’s double jeopardy loophole and ensure that anyone who evades federal justice by virtue of a politically expedient pardon can be held accountable if they violate New York law.”

Things appeared to be moving forward earlier this year when Democrats in the state Legislature introduced a bill in April to reverse that rule in New York. Assemblyman Joe Lentol, D-Brooklyn, and Sen. Todd Kaminsky, D-Long Beach, sponsored the bill in their respective chambers.

The legislation was sent to committee in each chamber, where it stayed through the end of this year’s legislative session. There were two reasons the bill did not make it to the floor for a vote in either chamber. The most obvious was Republican opposition in the Senate. Sen. Patrick Gallivan, R-Elma, chairs the Crime Victims, Crime and Correction Committee in the Senate. He called the bill “disgraceful” and compared it to Gov. Andrew Cuomo’s executive order pardoning thousands of parolees this year so they could vote.

“I think it’s disgraceful. It’s OK that the governor pardons 35,000 people and has parole officers handing out and directing parolees, murderers, rapists, where they go to vote?” Gallivan said. “But God forbid a president, just like President Obama, just like President Clinton, pardons somebody, now we’re going to question the president just because of what his party is?”

The bill’s sponsors will tell you that it’s not about party, it’s about Trump. But as written it would apply to his successors.

“This bill would not just apply to the current president, it will apply to any president going forward,” Kaminsky said. “I think the president’s actions have laid bare a loophole that needs to be closed.”

That idea also turned out to be the other big obstacle to the bill, Lentol said. Criminal justice advocates were worried the legislation would be used by prosecutors in New York to bring charges indiscriminately against people other than Trump and his allies.

“The major flaw with the bill is that it would allow a lot of district attorneys power, and sometimes maybe inappropriately charge someone with a crime,” Lentol said. “The bill has wide scope and I think we need to narrow it in order for it to not be used by folks who may be unscrupulous.”

Kaminsky’s answer to that concern was a section of the bill that exempts certain offenders from also being charged by the state. According to the bill, a state prosecutor would not be able to bring charges against someone if a “reprieve, pardon, or other form of clemency was granted five years or more after entry of judgment for such offense.”

“I think the exception that the bill already contains is pretty broad,” Kaminsky said.

Whatever concerns lawmakers in Albany may have over the state’s move to deal with double jeopardy issues may now have to contend with the U.S. Supreme Court’s decision to hear the Gamble case. New York University School of Law professor Richard Pildes called the move a highly significant challenge to decades of doctrinal precedent.

“I thought it was quite dramatic that they announced their decision to reconsider this issue,” Pildes said. “At least four of them are certainly very interested in whether the court should engage in a major reconsideration of the doctrine. I think you can read that much into the grant.”

As the petition itself notes, interest in the issue among the justices appears to be growing. Quoting the court’s 2016 ruling in Puerto Rico v. Sanchez Valle, Gamble noted that both Justices Ruth Bader Ginsburg and Clarence Thomas have called for a fresh examination of the doctrine.

Pildes noted that it’s tough to bring a challenge to the separate sovereigns exception.

“It’s very hard to have these cases teed up to squarely present the issue,” he said.

Even Gamble noted in his petition that the few cases that have been brought to challenge the doctrine “have been riddled with vehicle problems.” These challenges will ultimately mean worries about the potential impact of Gamble on any move by New York to close its double jeopardy loophole are likely to be unfounded, according to Columbia Law School professor and former Manhattan federal prosecutor Daniel Richman.

Even if Gamble were to do away with the separate sovereigns exception, Richman said, “The question becomes, do the elements of one prosecution overlap with the elements of the other prosecution?”

In reality, this is so rarely the case that, for Richman, the concern becomes largely an academic one and “a bit of a red herring.”

More often than not, when federal and state charges are lined up, “there’s no overlap, or almost no overlap, that would ring Fifth Amendment chimes in the absence of the dual sovereign analysis,” he said.

“This is just a reminder of the thinness of federal double jeopardy protections, even putting the dual sovereign protections aside,” he added.

The potential impact of Gamble is, for now at least, not deterring those in support of closing the state’s double jeopardy loophole from moving forward.

Lentol said he’s exploring other options to garner support for the bill. One would allow only the state attorney general to bring state charges against someone who’s received a federal pardon. That would help curb the possibility of having a district attorney target someone acquitted of a federal crime, Lentol said.

Another option would be to have the bill sunset at the end of Trump’s presidency, Lentol said.

Both options could build an appetite for the legislation to pass during next year’s legislative session. Kaminsky believes if the Senate passes the bill, the Assembly will follow suit. That seems unlikely for now while Republicans hold the majority in the upper chamber. Democrats need to gain at least one seat in this year’s election for that to change.