During his campaign, President Trump repeatedly made a symbol of Jose Ines Garcia Zarate — a homeless, undocumented immigrant and convicted felon who was facing trial for the 2015 killing of a young white woman, Kate Steinle, on San Francisco's Pier 14. "My opponent wants sanctuary cities," Trump said at the Republican National Convention. "But where was the sanctuary for Kate Steinle?"
Garcia Zarate was acquitted of both murder and manslaughter charges in a California court last month. The jury accepted Garcia Zarate's claims that his gun was fired accidentally and that the bullet ricocheted off the ground before it killed Steinle. But the jury did convict Garcia Zarate, a seven-time felon, of violating a California statute barring felons from possessing firearms.
Now, U.S. Atty. Gen. Jeff Sessions' Justice Department is pursuing federal criminal charges against Garcia Zarate. The DOJ has not accused Garcia Zarate of murder or manslaughter, presumably because it does not want to risk losing. Rather, it has accused Garcia Zarate of violating a federal gun possession statute that, for all intents and purposes, is identical to the California statute Garcia Zarate already was convicted of violating. The DOJ also added a second federal charge of being an illegal immigrant in possession of a gun.
The motivations behind the DOJ's move are plainly political. A federal conviction will make it easier to deport Garcia Zarate, who is still in custody in California. It also will give Trump a chance to save face by sending a clear message: When his opponents give sanctuary, he takes matters into his own hands and throws murderers out.
If the federal government gets its way, Garcia Zarate will be convicted twice for a single incident of gun possession. It may seem that a second conviction would be blocked by the Constitution's ban on double jeopardy. But in fact, an obscure legal principle called the "dual sovereignty" doctrine denies Garcia Zarate protection from federal prosecution. Under the dual-sovereignty exemption, a person can be convicted twice for the same offense as long as different "sovereigns" — in this case, California and the United States — obtain the two convictions.
As it happens, the Supreme Court is considering whether to hear a case that would give it the opportunity to abandon the dual-sovereignty exception. In this case, Gamble v. United States, the Court has been asked to consider whether double jeopardy bars a federal prosecution when the defendant already has been prosecuted for the same offense in state court. The plaintiff is a felon who was convicted in both state and federal court for possessing a gun.
Opponents of Trump's and Sessions' hard-line stance on immigration may be tempted to hope that the Supreme Court takes the case and changes our double jeopardy law, thereby scuttling the federal case against Garcia Zarate. But this would be a mistake. The dual-sovereignty exemption is law for good reason. It allows states and the federal justice departments to police each other for corrupt criminal justice practices.
It is true that the Constitution's double jeopardy clause is a check on the abuse of government power. The government gets to decide whom to prosecute. If it were allowed do-overs, it could just prosecute and prosecute until it got the verdicts it wanted.
But the dual-sovereignty exception is also a check on government power. American citizens are protected by both state and federal government. The exemption allows a state to protect its citizens even when the federal government does not do an adequate job, and vice versa.
Say that you live in a big blue state with a sizable population of people of color and that the U.S. attorney general is a former prosecutor from a red state with a long history of racist and abusive criminal justice policies. Now, imagine that the federal government acquits someone of violating a federal law on your state's soil, and that the acquitted defendant is the white CEO of a big corporation accused of dumping lead into your state's water.
Would you trust that the federal Justice Department did all it could to protect your citizens from the harm allegedly caused by this CEO? Wouldn't you want the opportunity to pursue charges against this CEO in your own courts, with your own judges and juries — people not beholden to the attorney general or the president who appointed him?
Dual sovereignty makes it possible for your state to protect you when the federal Justice Department does not have your best interests at heart. It makes sure that a red state's practices are not extended to your blue state via the federal Justice Department.
The Trump administration is at war with California and other blue states. Sessions is prosecuting Garcia Zarate because he wants California to use its criminal laws to purge immigrants. These are terrible motives.
But when states do not trust the federal government, and the federal government does not trust the states, we need laws that allow them to put one another's criminal defendants in jeopardy. We should defend Sessions' right to prosecute Garcia Zarate, even as we hope that his efforts fail.
Gideon Yaffe is a professor of law, philosophy and psychology at Yale Law School.