New York Seeks Power to Prosecute Individuals Pardoned by the President

BY Amanda Westrich

New York Seeks Power to Prosecute Individuals Pardoned by the President


New York lawmakers proposed a bill that allows prosecutors to bring state charges against people pardoned by the president.

State Senator Todd Kaminsky and Assemblyman Joseph Lentol, both Democrats, introduced the legislation after Attorney General Eric Schneiderman requested a change to an existing law that precludes people from being charged a second time for the same crime even if the original prosecution occurred in federal court.

“New York’s statutory protections could result in the unintended and unjust consequence of insulating someone pardoned for serious federal crimes from subsequent prosecution for state crimes — even if that person was never tried or convicted in federal court, and never served a single day in federal prison,” Schneiderman wrote in a letter to state legislators and Democratic Governor Andrew Cuomo.

The Fifth Amendment protects individuals from being tried twice for the same offense, a clause in the U.S. Constitution known as double jeopardy. About half the states, including New York, have also enacted their own double jeopardy statutes.

Schneiderman’s letter cites recent reports that President Donald Trump “may be considering issuing pardons that may impede criminal investigations” as a reason why an amendment to the law is necessary. The president cannot issue a pardon for state crimes.

Several of Trump’s former aides have been charged with federal crimes as part of an inquiry led by Robert Mueller, the special prosecutor investigating a potential Russian intrusion in the 2016 presidential election. Some of the associates charged, including Rick Gates, a former campaign adviser, and Michael Flynn, Trump’s former national security adviser, have pleaded guilty.

In addition, the Southern District of New York, a U.S. Department of Justice office apart from Mueller’s, has revealed Trump’s longtime personal lawyer Michael Cohen is under criminal investigation.

Over the years, a dozen exceptions have been added to New York’s double jeopardy law.

Former U.S. Attorney of Alabama Joyce Vance, in an interview with NPR, explained the proposed change as “an issue of timing.”

“Putting this in the context of the Trump investigation, defendants who've already pleaded guilty or future defendants who might plead guilty or go to trial and have a jury impaneled in their case would then be ineligible for retrial in the state of New York if they were to be pardoned by President Trump at that point in the proceedings,” Vance said.

Kaminsky, in an interview with WCNY, described what might happen without his proposed legislation.

“Someone could plead guilty with a wink, wink. Get pardoned by the president. Have never served a day in jail and then New York prosecutors who may have very good evidence . . . that someone broke a New York law . . . are powerless to do anything about it,” Kaminsky said.

Trump has repeatedly expressed his disapproval with the investigations of his administration and associates, calling the inquiries a witch hunt on Twitter.

The president has also tweeted about his power to pardon and carried out that authority by issuing pardons to former Arizona sheriff Joe Arpaio, who was convicted of criminal contempt, and Vice President Dick Cheney’s former chief of staff Scooter Libby, who was convicted of perjury and obstruction of justice.

What’s more, Trump has reportedly asked if he could pardon himself if necessary.

“It seems to be a lot of signaling and a lot of the president flexing his muscles and that’s really scary,” Kaminsky said in the interview with WCNY.

This is not the first time Schneiderman, a Democrat, has challenged Trump. The attorney general led the investigation into Trump University that ended with a $25 million settlement. The president has called Schneiderman “the nation’s worst AG.”

New York is a blue state and Democrats hold a majority in the Assembly. In the Senate, however, one Democrat caucuses with Republicans, which gives the GOP the majority by one vote.

Amanda Westrich

Amanda Westrich is a contributor for Bigger Law Firm.


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