What legal precedents govern dual sovereignty and state prosecutions after federal presidential pardons?
Executive summary
The governing precedent is the Supreme Court’s dual-sovereignty doctrine: separate governments (federal and state, or two states) may sequentially prosecute the same conduct without violating the Fifth Amendment’s Double Jeopardy Clause, a principle reaffirmed most recently in Gamble v. United States [1] and rooted in older cases such as United States v. Lanza and Heath v. Alabama [2] [3] [4]. Because presidential pardons apply only to federal offenses, a federal pardon does not bar a subsequent state prosecution under the dual-sovereignty rule—an outcome the Court’s doctrine and legal commentators have repeatedly described and debated [5] [6].
1. Origins and doctrinal core: separate sovereigns, separate offenses
The doctrine began in early twentieth‑century jurisprudence and rests on the premise that the phrase “same offence” in the Fifth Amendment refers to the same sovereign’s law; Lanza established that federal conviction after state conviction did not violate double jeopardy because the states and federal government derive authority from different sources [2] [3]. The Court has extended the idea to successive prosecutions by two states and to tribal prosecutions because each sovereign can define and vindicate its own interests in the same underlying conduct [2] [7].
2. Gamble reaffirmed, not reinvented: the 2019 confirmation
In Gamble v. United States the Supreme Court rejected the argument that the dual‑sovereignty doctrine should be overruled, holding 7–2 that historical practice and text support a sovereign‑specific reading of “same offence,” and thus maintaining that the Double Jeopardy Clause does not bar prosecution by a second sovereign even after conviction or acquittal by the first [1] [8]. The majority emphasized federalism concerns and international analogues—if only one sovereign could prosecute, the United States’ ability to vindicate its own laws could be hampered [3] [1].
3. The pardon axis: presidential clemency is federal‑limited
A presidential pardon is an “act of grace” that covers only “Offenses against the United States,” so it cannot nullify state criminal authority; the practical upshot is that a federal pardon does not immunize a defendant from state prosecution under the dual‑sovereignty framework [5] [6]. Attorneys and courts therefore treat a federal pardon as irrelevant to separate state prosecutions, a point reiterated in legal commentary after Gamble and in scholarship describing the pardon power’s scope [5] [6].
4. Contesting voices: constitutional text, policy, and scholarly unease
Scholars and some justices have long criticized the doctrine as inconsistent with the Double Jeopardy Clause’s text and protective purpose, urging limits or a balancing approach; dissenting opinions and law review articles argue the rule presumes different sovereign motives without meaningful judicial scrutiny and risks duplicative punishment [9] [10] [11]. Opponents warn that retaining dual sovereignty allows a political actor—like a president—to effectively erase federal exposure while leaving defendants vulnerable to state retribution, creating asymmetries critics say the Constitution did not intend [10] [7].
5. Practical constraints and prosecutorial norms
Despite the doctrinal clearance for successive prosecutions, practical constraints—like the DOJ’s “Petite” policy limiting federal retrials after state prosecutions and comity norms between sovereigns—often reduce overlap in practice; commentators note that prosecutors routinely coordinate to avoid duplicative or vindictive prosecutions even though the Constitution, per Gamble, permits them [12] [10]. Case law exceptions have been narrow—Puerto Rico v. Sanchez Valle shows the rule depends on the independent source of prosecutorial authority and that quasi‑sovereigns may fail the test [2] [3].
6. What remains unsettled: evidence, preclusion, and future tests
The Court has left unresolved finer points—whether particular doctrines of collateral estoppel, admission of prior testimony, or novel claims of vindictive inter‑sovereign collusion could cabin successive prosecutions—and scholarship suggests avenues (statutory, doctrinal, or policy) for limiting perceived abuses short of overruling dual sovereignty [13] [9] [11]. The public‑policy and political stakes—especially where high‑profile federal pardons intersect with active state investigations—ensure continued litigation and scholarship probing whether the doctrine should survive or be narrowed [8] [10].