Decades ago, the Supreme Court developed an exception to the Fifth Amendment’s double jeopardy clause and it is now being asked to rethink precedent.
The so-called “separate sovereigns exception” provides that a person can be tried twice for the same offense if the prosecutions occur in state and federal courts. The rationale is that the states and the federal government are different sovereigns.
Critics contend that in the modern day it leads to harassment of defendants — especially the poor — who can’t afford to fight on two fronts. They also point to a recent trend they argue has led to an increase of federal prosecutions in areas that had traditionally been left to the states.
In addition, it could also impact the presidential pardon power, leading to a question of what would happen if President were to pardon an individual like his former campaign chairman Paul Manafort for federal offenses. Under the exception, a state could conceivably bring a prosecution for the same crimes. That might not occur if the court were to strike the exception.
In court, the justices worried about the fact that the exception has been on the books for some 170 years.
Justice Elena Kagan stressed that “30” justices have approved it. Justice Brett Kavanaugh noted the instability in the system that can occur when the justices change course. That seemed to be the prevailing sentiment on the court.
At the same time, some justices recognized the complication of the debate and how the exception…