NBC wonders: Will SCOTUS change precedent on double jeopardy in time to help Manafort?

Spoiler alert: That’s actually not the issue in case the Supreme Court will hear this week. However, who are we to begrudge NBC News a sellable hook? Come for the Trumpian paranoia, stick around for a very serious issue that has grown far more significant in modern times:

The U.S. Supreme Court hears a challenge Thursday to its long-standing rule that putting someone on trial more than once for the same crime does not violate the Constitution’s protection against double jeopardy.

The Fifth Amendment says no person shall be “twice put in jeopardy of life or limb” for the same offense, and most Americans are familiar with the term double jeopardy. But for more than 160 years, the Supreme Court has ruled that being prosecuted once by a state and again in federal court, or the other way around, for the same crime doesn’t violate the provision because the states and the federal government are “separate sovereigns.”

The case has attracted more than the usual attention because of the prospect that President Trump might pardon Paul Manafort, who faces prison time for violating federal fraud laws. A presidential pardon could keep him out of federal prison, but it would not free him from being prosecuted on similar state charges. Overturning the rule allowing separate prosecutions for the same offenses, however, could work in his favor.

Just how well would this work for Manafort? His indictments — so far — involve issues such as money laundering and tax evasion. If proven on the federal level, it’s also likely to be proven that Manafort evaded state taxes in New York as well. Those are two different crimes within the same set of circumstances, and a presidential pardon wouldn’t touch the latter, at least under current Supreme Court precedent. That recognizes the separate sovereignties of the federal and state governments, which means that Manafort could get tried by the state of New York.

Or can he? As it turns out, he can’t — at least not in New York. State law prohibits charging a person who has already been charged with the same crime in federal court. Attorney General Eric Schneiderman has urged the governor and the legislature to close what he calls a “double-jeopardy loophole,” but they have yet to act on that issue. Perhaps that’s because it’s not a loophole at all, but precisely how the law was intended to work.

Even if New York amends or repeals this law, however, a different constitutional issue might come into play, the prohibition on ex post facto application of new law. While tax evasion was a crime all along, Manafort would have committed those acts while the state’s prohibition on double jeopardy was in effect. Mueller and the feds charged Manafort while it was in effect, anyway, which would arguably be enough to prevent a state-level prosecution against him for these same crimes, regardless of what the Supreme Court does with this case.

However, this is still a very interesting case to watch. The multiplying number of federal crimes over the last several decades of expanding jurisdictions has created a lot more overlap between the two levels of sovereignty. That sets up a situation where the court might consider previous precedents insufficient to deal with the constitutional ramifications of so much duplication. Just the fact that the court granted cert in Gamble v US after lower courts followed that precedent in dismissing the double-jeopardy complaint is significant. At least four justices seem interested in a “fresh examination” of this doctrine, a point on which Justices Clarence Thomas and Ruth Bader Ginsburg agreed two years ago in Puerto Rico v Sanchez Valle.

The solution to this would be to dramatically scale back federal sovereignty in criminal prosecutions, leaving most defendants to the states in which the crimes were committed. (As long as we have a federal income tax, however, that still wouldn’t have helped Manafort.) Until that happens, the constitutional prohibition on double jeopardy is essentially meaningless for those caught between sovereigns, and the Supreme Court might finally be ready to recognize that.