The Fifth Amendment's second clause is known as the Double Jeopardy clause. And it provides "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." The Supreme Court has never read "life or limb" literally. The protection covers all felonies and misdemeanors. Stated simply, once you've been acquitted or convicted of a crime the government can't prosecute you again for that crime. Because we have a federal system of government, we have dual sovereigns: the national government and the state governments. This raises the question: if you are convicted or acquitted of a crime in state or federal court, can the other prosecute you for the same crime?
Until recently, this seemed to be a settled question. In 1922, the Supreme Court of the United States explicitly upheld the dual-sovereignties doctrine. In United States v. Lanza, SCOTUS held "we have here two sovereignties, deriving power from different sources, capable of dealing with the same subject matter within the same territory." Under this doctrine, the fact that Lanza had been prosecuted under state law did not bar his subsequent prosecution by the federal government. The Court recognizes that each sovereign has different interests in making certain acts crimes and in deciding whether to prosecute crimes. Here, I'll detour from the question at hand to mention another important development in the law of double jeopardy.
Until 1969--unless a state constitution or state law prohibited it--a state could prosecute a person after an acquittal. In Benton v. Maryland, the state indicted Benton for larceny and burglary; the jury acquitted Benton on the larceny charge but convicted him of burglary. Because Benton's grand and petite juries were selected under an invalid law, his case was remanded to the trial court. Benton exercised his right to be indicted and tried all over again. The state indicted him on the burglary charge and decided to take another shot at the larceny count too. The case worked its way to SCOTUS where the Court held that the Fifth Amendment's double jeopardy clause applied to the states. Thus, Maryland couldn't retry Benton on the larceny charge because of his acquittal. Now, back to the dual-sovereignties question.
In Abbate v. United States, the defendants asked SCOTUS to overrule Lanza and abandon the dual-sovereignties doctrine. The defendants were convicted in Illinois for violating an Illinois statute that made it a crime to conspire to destroy the property of another. Abbate and his confederates met in Chicago as part of a conspiracy to bomb South Central Telephone & Telegraph facilities in Mississippi, Tennessee, and Louisiana. Abbate and his fellows changed their minds and did not go through with the bombing. But it was too late to avoid prosecution for conspiring to bomb the facilities. They pleaded guilty to state charges in Illinois and got sentences of three months each. Not to be outdone, the federal government indicted Abbate and friends in Mississippi. And this set in motion the failed effort to convince the Supreme Court to overrule Lanza. There have been other attempts by those convicted in state and federal courts and those convicted in the courts of two states to convince the Court to abandon the dual-sovereignties doctrine. These attempts have failed. On December 6, 2018, the Court heard arguments in the most recent attempt: Gamble v. United States.
Our friend Gamble was convicted of second degree robbery in Mobile County, Alabama, in
2008. This made Gamble a felon. Both state and federal law make it a crime for a felon to possess a gun. In 2015, Gamble was driving in Mobile with a burned out headlight. He was stopped by a police officer who smelled--you guessed it--marijuana. This led to probable cause to search Gamble's car, and the officer found two baggies of marijuana, digital scales, and a 9mm handgun. Alabama indicted Gamble for violating state law. An eager beaver in the U.S. Attorney's office saw a chance for an easy indictment and quick conviction so the U.S. Attorney could issue a press release about its war on drugs. Double jeopardy was Gamble's only objection to his federal indictment. The district court and the Eleventh United States Cirucuit Court of Appeals rejected Gamble's argument because of the dual-sovereignties doctrine. This led Gamble to ask SCOTUS to review his case. It only takes four justices for the Court to accept the case but five to win.
The majority of the justices don't seem open to Gamble's arguments in favor of abandoning the dual-sovereignties doctrine. There is concern that this would prevent the United States from prosecuting criminals in the United States if they are acquitted in another country. And it would create a lot of unanswered questions, e.g., which foreign courts will the court apply double jeopardy to and which will it not? There are likely only two justices who will vote to abandon the dual-sovereignties doctrine: Ginsburg and Thomas. In Puerto Rico v. Sanchez-Villa, the Court held that the doctrine did not apply to Puerto Rico because Puerto Rico derives its power from Congress. Therefore, you can't be prosecuted by Puerto Rican authorities and then by the federal government or vice versa. Justice Ginsburg concurred in the decision, but in her concurring opinion she urged the Court to take another look at the dual-sovereignties doctrine; Justice Thomas joined her concurring opinion. Perhaps Gorsuch will join Ginsburg and Thomas, but 6 > 3 so Gamble will lose and the dual-sovereignties doctrine will continue.
Showing posts with label SCOTUS. Show all posts
Showing posts with label SCOTUS. Show all posts
Saturday, December 15, 2018
Saturday, July 8, 2017
Does the law require that Justice Ginsburg recuse herself in Trump v. Int'l Refugee Assistance Project?
To answer this question, it helps to look at how Justice Scalia handled recusal and the relevant statute's language. Over 13 years ago, the Sierra Club wanted Scalia to recuse himself in Cheney v. United States District Court. And before that, the issue of recusal came up in Elk Grove Unified School District v. Newdow. In Cheney, Scalia did not recuse himself, but he did in Elk Grove.
Background
Cheney v. United States District Court
Early in his presidency, Geo. W. Bush established the National Energy Policy Development Group with Vice President Cheney as its head. This committee's broad purpose was to advise the president on energy policy. The Federal Advisory Committee Act requires that such committees conduct their business in public, unless they are composed exclusively of federal officials or employees, The Sierra Club and Judicial Watch argued that energy industry lobbyists were members because they were so deeply involved in the committee's work; if true, the committee had to conduct its business in public. The Sierra Club and Judicial Watch wanted information about the committee to determine the extent to which private individuals were involved in the committee's work. Both the District Court and the D.C. Circuit Court concluded that the committee must turn over the information. The vice president petitioned the Supreme Court of the United States to review the case, and SCOTUS agreed to review it. The vice president was not a party in his individual capacity--the lawsuit wasn't against him personally--but only in his official capacity as vice president.
The Sierra Club wanted Justice Scalia to recuse himself because of his friendship with Vice President Cheney and because the two had gone on a hunting trip together in 2003.
Because Cheney was sued only in his official capacity
as head of the committee and the lawsuit only
challenged an administrative decision, the Cheney-
Scalia friendship did not require recusal.
Cheney and Scalia had been friends since their time in the Ford Administration. In responding to the recusal motion, Justice Scalia filed a memorandum in which he described the hunting trip. The gist is that Scalia's friend Wallace Carline admired Cheney; this led Scalia to ask Mr. Carline if he would like for Scalia to invite the vice president on their next hunting trip. Mr. Carline liked the idea, so Scalia extended the invitation and Cheney accepted. Cheney invited Scalia, a son, and Scalia's son-in-law to fly on the vice president's plane--if space allowed--to Louisiana for the hunting trip. This all occurred before the Court agreed to hear the case.
The hunting party comprised 13 individuals. The hunters slept two or three to a room with the vice president having his own quarters. The vice president's security detail and a few members of Mr. Carline's staff were there too. Scalia and Cheney never hunted in the same blind, nor were they ever alone except, in Scalia's words, "perhaps, for instances so brief and unintentional that I would not recall them." Cheney left after two days; Scalia, his son, and son-in-law stayed longer and flew back to D.C. on a commercial airline. The motion to recuse must be based on these facts, not on facts surmised by others.
In deciding the issue, Scalia was guided, in part, by the Court's Statement of Recusal Policy; a policy that dated back to 1993. Because the Court is a nine-member court, the policy cautions against recusal "out of an excess of caution." The reason is simple: a single recusal would leave the Court with only eight members to decide the case. Because an evenly divided Court would result in the lower court's decision being unchanged, recusal would, as Justice Scalia wrote, be a vote against the petitioner. This led Scalia to reject Sierra Club's argument that any doubts about recusal should be resolved in favor of recusal.
The essence of Sierra Club's argument was that Scalia should recuse himself because he and Cheney were friends. While it is true that if a friend's liberty or fortune is at stake recusal is the correct route, but friendship alone is not sufficient. Justice Scalia cited many examples from history where justices were personal friends with presidents. Justice Douglas, for example, regularly played poker with FDR. And, as Justice Scalia noted, most justices are nominated to the Court because of connections to high-ranking individuals in an administration. It would be quite a burden if friendship alone were enough.
Another important factor, as noted above, is that Cheney was a party only as head of the committee. In other words, he was not being sued as Richard Cheney. If the head of the committee changed during the pendency of the suit, the new committee head would automatically be substituted in place of Cheney. And the issue in the case was not about Cheney, but rather an administrative decision. In such cases, it would be absurd to require recusal. Hence, Scalia rejected Sierra Club's motion.
Elk Grove Unified School District v. Newdow
The issue in Elk Grove Unified School District v. Newdow, was whether reciting "under God" in the Pledge of Allegiance at the beginning of the school day violated the Constitution. While the Court was considering whether to grant review, Scalia commented on the Ninth Circuit's decision in the case. He said, among other things, "The new constitutional philosophy says if those who decide the law think it would be a good idea to get religion out of the public forum, then it will be exterminated from the public forum through judicial fiat." Biskupic, An American Original at p. 267. Newdow asked Scalia to recuse himself from the Court's decision whether to review the case. In the Court's order granting review, the Court merely noted that Justice Scalia took no part in the decision. Scalia obviously thought that his comments set up a situation in which his "impartiality might reasonably be questioned," or that he had a "personal prejudice concerning a party." These are two of the bases in the statute that require recusal. But, as is the usual case, Scalia did not explain why he recused himself.
28 U.S.C. § 455
The statute sets out the grounds for recusal. One part applicable here requires that "[a]ny justice . . . disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). The other applicable part requires recusal if the judge "has a personal bias or prejudice concerning a party."
Because Trump is a party only in his official capacity and the case challenges only a government policy, the law does not require that Ruth Bader Ginsburg recuse herself from participating in Trump v. Int'l Refugee Assistance Project.
At the end of June, SCOTUS granted review in Trump v. Int'l Refugee Assistance Project . Fifty-eight members of Congress sent a letter to Justice Ginsburg demanding that she recuse herself from the case. First, a letter from members of Congress is not how recusal works. A party to the case must file a motion seeking recusal. Unless a party files a motion, Ginsburg won't even address the matter.
Second, President Trump is a party in his official capacity just as Cheney was in Cheney v. United States District Court. (This is an important distinction lost on at least one law professor. Here, Lumen Mulligan associate dean at the University of Kansas School of Law shows his misunderstanding of the distinction.)
How does this apply to Justice Ginsburg and Trump v. Int'l Refugee Assistance Project ? Here--just as was the case in the Cheney matter--Trump is sued in his capacity as president, i.e., his official capacity. And this case is about a policy of the federal government. Because Trump is a party in his capacity as president, Justice Ginsburg's dislike of Trump the businessman, Trump the candidate, Trump the Presbyterian, Trump the husband, etc. doesn't matter for purposes of recusal in this case. Justice Ginsburg has not made any public statements about her opinion of the policy, she's only expressed dislike of Donald Trump.
Does Justice Ginsburg have a predisposition regarding the policy at issue in Trump v. Int'l Refugee Assistance Project? Doubtless she does. But having a predisposition about the legal issues does not require recusal. As Scalia wrote in Republican Party of Minnesota v. White, "a judge's lack of predisposition regarding the relevant legal issues in a case has never been thought of as a necessary component of equal justice, and with good reason . . . [because] it is virtually impossible to find a judge who does not have preconceptions about the law."
Conclusion
Justice Ginsburg should exercise discretion and avoid attacking the president. But, for the following reasons, her behavior does not require recusal:
Background
Cheney v. United States District Court
Early in his presidency, Geo. W. Bush established the National Energy Policy Development Group with Vice President Cheney as its head. This committee's broad purpose was to advise the president on energy policy. The Federal Advisory Committee Act requires that such committees conduct their business in public, unless they are composed exclusively of federal officials or employees, The Sierra Club and Judicial Watch argued that energy industry lobbyists were members because they were so deeply involved in the committee's work; if true, the committee had to conduct its business in public. The Sierra Club and Judicial Watch wanted information about the committee to determine the extent to which private individuals were involved in the committee's work. Both the District Court and the D.C. Circuit Court concluded that the committee must turn over the information. The vice president petitioned the Supreme Court of the United States to review the case, and SCOTUS agreed to review it. The vice president was not a party in his individual capacity--the lawsuit wasn't against him personally--but only in his official capacity as vice president.
The Sierra Club wanted Justice Scalia to recuse himself because of his friendship with Vice President Cheney and because the two had gone on a hunting trip together in 2003.
Because Cheney was sued only in his official capacity
as head of the committee and the lawsuit only
challenged an administrative decision, the Cheney-
Scalia friendship did not require recusal.
Cheney and Scalia had been friends since their time in the Ford Administration. In responding to the recusal motion, Justice Scalia filed a memorandum in which he described the hunting trip. The gist is that Scalia's friend Wallace Carline admired Cheney; this led Scalia to ask Mr. Carline if he would like for Scalia to invite the vice president on their next hunting trip. Mr. Carline liked the idea, so Scalia extended the invitation and Cheney accepted. Cheney invited Scalia, a son, and Scalia's son-in-law to fly on the vice president's plane--if space allowed--to Louisiana for the hunting trip. This all occurred before the Court agreed to hear the case.
The hunting party comprised 13 individuals. The hunters slept two or three to a room with the vice president having his own quarters. The vice president's security detail and a few members of Mr. Carline's staff were there too. Scalia and Cheney never hunted in the same blind, nor were they ever alone except, in Scalia's words, "perhaps, for instances so brief and unintentional that I would not recall them." Cheney left after two days; Scalia, his son, and son-in-law stayed longer and flew back to D.C. on a commercial airline. The motion to recuse must be based on these facts, not on facts surmised by others.
In deciding the issue, Scalia was guided, in part, by the Court's Statement of Recusal Policy; a policy that dated back to 1993. Because the Court is a nine-member court, the policy cautions against recusal "out of an excess of caution." The reason is simple: a single recusal would leave the Court with only eight members to decide the case. Because an evenly divided Court would result in the lower court's decision being unchanged, recusal would, as Justice Scalia wrote, be a vote against the petitioner. This led Scalia to reject Sierra Club's argument that any doubts about recusal should be resolved in favor of recusal.
The essence of Sierra Club's argument was that Scalia should recuse himself because he and Cheney were friends. While it is true that if a friend's liberty or fortune is at stake recusal is the correct route, but friendship alone is not sufficient. Justice Scalia cited many examples from history where justices were personal friends with presidents. Justice Douglas, for example, regularly played poker with FDR. And, as Justice Scalia noted, most justices are nominated to the Court because of connections to high-ranking individuals in an administration. It would be quite a burden if friendship alone were enough.
Another important factor, as noted above, is that Cheney was a party only as head of the committee. In other words, he was not being sued as Richard Cheney. If the head of the committee changed during the pendency of the suit, the new committee head would automatically be substituted in place of Cheney. And the issue in the case was not about Cheney, but rather an administrative decision. In such cases, it would be absurd to require recusal. Hence, Scalia rejected Sierra Club's motion.
Elk Grove Unified School District v. Newdow
The issue in Elk Grove Unified School District v. Newdow, was whether reciting "under God" in the Pledge of Allegiance at the beginning of the school day violated the Constitution. While the Court was considering whether to grant review, Scalia commented on the Ninth Circuit's decision in the case. He said, among other things, "The new constitutional philosophy says if those who decide the law think it would be a good idea to get religion out of the public forum, then it will be exterminated from the public forum through judicial fiat." Biskupic, An American Original at p. 267. Newdow asked Scalia to recuse himself from the Court's decision whether to review the case. In the Court's order granting review, the Court merely noted that Justice Scalia took no part in the decision. Scalia obviously thought that his comments set up a situation in which his "impartiality might reasonably be questioned," or that he had a "personal prejudice concerning a party." These are two of the bases in the statute that require recusal. But, as is the usual case, Scalia did not explain why he recused himself.
28 U.S.C. § 455
The statute sets out the grounds for recusal. One part applicable here requires that "[a]ny justice . . . disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). The other applicable part requires recusal if the judge "has a personal bias or prejudice concerning a party."
Because Trump is a party only in his official capacity and the case challenges only a government policy, the law does not require that Ruth Bader Ginsburg recuse herself from participating in Trump v. Int'l Refugee Assistance Project.
At the end of June, SCOTUS granted review in Trump v. Int'l Refugee Assistance Project . Fifty-eight members of Congress sent a letter to Justice Ginsburg demanding that she recuse herself from the case. First, a letter from members of Congress is not how recusal works. A party to the case must file a motion seeking recusal. Unless a party files a motion, Ginsburg won't even address the matter.
Second, President Trump is a party in his official capacity just as Cheney was in Cheney v. United States District Court. (This is an important distinction lost on at least one law professor. Here, Lumen Mulligan associate dean at the University of Kansas School of Law shows his misunderstanding of the distinction.)
How does this apply to Justice Ginsburg and Trump v. Int'l Refugee Assistance Project ? Here--just as was the case in the Cheney matter--Trump is sued in his capacity as president, i.e., his official capacity. And this case is about a policy of the federal government. Because Trump is a party in his capacity as president, Justice Ginsburg's dislike of Trump the businessman, Trump the candidate, Trump the Presbyterian, Trump the husband, etc. doesn't matter for purposes of recusal in this case. Justice Ginsburg has not made any public statements about her opinion of the policy, she's only expressed dislike of Donald Trump.
Does Justice Ginsburg have a predisposition regarding the policy at issue in Trump v. Int'l Refugee Assistance Project? Doubtless she does. But having a predisposition about the legal issues does not require recusal. As Scalia wrote in Republican Party of Minnesota v. White, "a judge's lack of predisposition regarding the relevant legal issues in a case has never been thought of as a necessary component of equal justice, and with good reason . . . [because] it is virtually impossible to find a judge who does not have preconceptions about the law."
Conclusion
Justice Ginsburg should exercise discretion and avoid attacking the president. But, for the following reasons, her behavior does not require recusal:
- Trump is not sued in his personal or individual capacity;
- The case is about a government policy, not about Trump's behavior in his individual capacity;
- Ginsburg's preconceptions about the policy do not require recusal.
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