The justices are back on the bench this morning for an unusual Thursday argument. A double jeopardy challenge with possible ramifications for the special counsel investigation of the 2016 elections was shifted from Wednesday because of the state funeral for former President George H.W. Bush. A trio of former Supreme Court clerks will argue and we have a quick preview of their arguments. Also, two Arnold & Porter lawyers tell why shorter amicus briefs are not such a bad idea. Thanks for reading. Contact us at [email protected] and [email protected].

Mueller's In Backdrop of Double-Jeopardy Case

Don't expect to hear Robert Mueller's name or presidential pardons mentioned in this morning's rare Thursday arguments in the case Gamble v. United States. But they are the elephants in the courtroom in this constitutional criminal dispute.

Alabama felon Terance Gamble is asking the justices to overrule the court-created “separate sovereigns” exception to the Fifth Amendment's double jeopardy clause. The clause guarantees that no one “shall be twice put in jeopardy” “for the same offence.” But the exception allows prosecution for the same crime by separate sovereigns, such as states and the federal government.

Gamble's challenge has drawn more than usual attention because of its potential impact on Mueller-related prosecutions in his investigation of Russian interference in the 2016 elections.

Legal scholars disagree on whether, without the exception, a presidential pardon of anyone convicted of federal charges in connection with the Mueller investigation would block states from pursuing state charges.

At the lectern this morning will be three former Supreme Court clerks.

>> Gamble's argument: Jones Day partner Louis Chaiten, a former Antonin Scalia clerk, represents Gamble, who was convicted in state and federal prosecutions for the offense of being a felon in possession of a firearm. Chaiten contends the separate sovereigns exception—more than a century old—is “at war” with the text, original meaning and purpose of the double jeopardy clause. “Permitting consecutive prosecutions for the same offense simply because different sovereigns initiate them 'hardly serves' the deeply rooted principles of finality and fairness the Clause was designed to protect,” writes Chaiten.

>> What the United States argues: Assistant to the Solicitor General Eric Feigin, a former Stephen Breyer clerk,counters that the violation of a state law and the violation of a federal law are distinct “offence[s]” under the double jeopardy clause. “A transgression of two independent sovereigns' laws, even through the same act, is thus two different 'offence[s],' he writes.

>> The states weigh In: The justices granted 10 minutes of argument time to Texas Solicitor General Kyle Hawkins, a former clerk to Justice Samuel Alito Jr., on behalf of 36 states. A ruling for Gamble, Hawkins contends, would “upend the principle by which a State is not precluded from enforcing its criminal laws vindicating its sovereignty because another sovereign prosecuted the individual under its criminal laws for a violation of its interests.”

>> Strange bedfellows? The Constitutional Accountability Center has joined with the libertarian Cato Institute and the American Civil Liberties Union to support Gamble. Like Gamble, their counsel, the center's Brianne Gorod, a former Breyer clerk, argues the separate sovereigns exception is inconsistent with the clause's text and original meaning. Jenner & Block partner Adam Unikowsky, a former Scalia clerk, represents Utah Republican Sen. Orrin Hatch in an amicus brief supporting Gamble.

>> Civil rights concern: In an amicus brief supporting neither party, Howard University School of Law Thurgood Marshall Civil Rights Center tells the court that many of the most notable successive or dual criminal prosecutions involved federal civil rights prosecutions after a state prosecution was tried to verdict. “No matter the outcome, there should be a civil rights exception that allows the prosecution of violators of civil rights law even if arising out of the same state conduct,” said executive director Justin Hansford.

Trimming Amicus Briefs

Proposed rules changes at the Supreme Court are still a hot topic, now that appellate lawyers have filed their somewhat critical comments to the clerk of the court.

The court is not making the comments it has received public. But in addition to the letter we reported on last Friday, Arnold & Porter lawyers R. Reeves Anderson and Anthony Franze have shared with us their comments, focused on amicus curiae briefs. (We'd welcome comments from others as well.)

Anderson and Franze are experts on amicus practice, having written annual reports on the growing phenomenon for The National Law Journal for the last eight years. The court's proposed changes for amicus briefs was to lower the word limit from 9,000 to 8,000.

The verdict in their letter was thumbs up:

“Though amicus briefs are helpful in apprising the court of the broader contexts in which the cases and issues before it arise and the justices frequently cite amicus briefs in their opinions—we think that the proposed reduction in length would not sacrifice essential substance, while materially reducing the burden on the court.”

In an interview, Franze put it this way: “Given the record number of amicus briefs filed in recent terms, it behooves all friends of the court to keep the briefs short and tight. Last term, amici filed 890 briefs. The rule change would've reduced the number of words by 890,000—War and Peace nearly two times over.”

>> Another idea from Anderson and Franze: Their letter told the clerk of the court that amicus briefs filed at the certiorari stage sometimes get lost in the shuffle when a respondent quickly waives its right to file a brief in opposition to cert.

When that happens, the case briefs are sometimes distributed to the justices earlier than the deadline for amicus briefs, so those briefs don't get to the justices. Anderson and Franze asked the court for a small adjustment of deadlines to remedy the problem.

SCOTUS Headlines: What We're Reading

>> How best to tell a Supreme Court justice “you are wrong?” We asked several longtime advocates. [NLJ]

>> Two Supreme Court veterans—Peter Keisler of Sidley Austin and Andrew Pincus of Mayer Brown—are appearing down the street this morning in the D.C. Circuit's big AT&T antitrust case. [NLJ]

>> The U.S. Supreme Court sounded as if it could be getting a case of buyer's remorse over patent law's on-sale bar. [NLJ]