Sujit Choudhry is one of the world’s foremost legal experts when it comes to constitution building. He has taught this subject in both American and Canadian universities. He also established the Center for Constitutional Transitions 7 years ago. This organization researches constitutional issues and provides its findings to government policymakers who are either creating a constitution or modifying an existing one.
He recently wrote a blog article about the process America went through in regards to whether Brett Kavanaugh should be on the Supreme Court. Sujit Choudhry says that to call this process one that was highly contentious to be an understatement. The thing that many people were focused on was what impact his presence on the Supreme Court would have on the Roe v. Wade ruling. Other big issues included how he thought about whether Trump could be subpoenaed as he is the President.
Sujit Choudhry says that what is equally interesting to these subjects is how he would approach the “Separate Sovereigns Exception” to Double Jeopardy. There is a pending case before the US Supreme Court which is Gamble v. United States. It is pretty well assumed that the four Conservative judges on the Supreme Court will vote to eliminate this exception and that the four Liberal justices will not. Kavanaugh’s vote will presumably be the difference maker.
People in the United States cannot be tried for the same crime twice. This is outlined in the Fifth Amendment of the Constitution. This legal principle was upheld in 1896 in the United States v. Ball case where the Supreme Court said that defendants can’t be twice put in jeopardy.
However, as Sujit Choudhry, notes, the “Separate Sovereigns Exception” holds that a person that has been accused of a crime can’t be prosecuted twice in a case that they are charged by two different sovereigns. If someone committed a crime that is illegal under both state and federal law both sovereign systems can prosecute them with a crime. Whether a person is cleared if charged under one sovereign system from all other charges from other sovereigns is what is at stake.
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