Crime

I Actually Like New York's Double Jeopardy Loophole The Way It Is, But We Can't Have Such Nice Things

If the president is going to ignore the rule of law, the law has to try to protect itself.

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New York Attorney General Eric Schneiderman is trying to close New York State’s double jeopardy “loophole,” in a clear attempt to protect prosecutions from possible Trump pardons of his cronies. Normally, prosecutions at the federal level do not preclude prosecutions at the state level. But New York has this weird rule where jeopardy attaches for state purposes if a defendant pleads guilty or a jury is sworn-in even for a federal case, subject to a few exceptions.

It means, potentially, that a person — say, Michael Cohen — who is tried by federal prosecutors, convicted, and pardoned by President Donald Trump could not later be prosecuted for state crimes, even though the president technically has no authority to pardon state crimes.

Given that our current president has as much respect for the rule of law as a tornado has for the structural integrity of a trailer park, it seems likely that Trump will pardon his buddies in exchange for their silence. The New York loophole might be big enough to drive the Russian oligarchy right through it.

So Schneiderman asked the Republican-controlled New York State legislature to close the loophole. It’s an election year here, so we don’t really know how the politics of that will play out. Obviously, there’s a feeling that time is of the essence to cut off this possible Trump escape hatch.

I can’t disagree with the political calculation. Schneiderman has to do what he has to do. Our failing republic is now nothing more than an application of raw power against raw power, and I’m excited for Democrats to start fighting the decades-long GOP war against normalcy with their own fire.

But… from a legal-theory standpoint, the “loophole” makes a lot of sense to me, and I’d rather see it preserved or even expanded rather than done away with. I’m old enough to remember when progressives stood against prosecutors hounding people all across the damn country.

I think “dual sovereignty” — the theory that says the federal government and the state government have separate standing to charge people for crimes arising from the same act — is kind of dumb. If I kick a puppy, the state and the feds should get together and decide which one wants to charge, or do it together, or whatever, but they should get ONE SHOT at ruining my life. The whole concept behind double jeopardy is that you shouldn’t be able to put me through an endless series of legal proceedings and forum shopping, until you finally find a jury that will do to me what you want them to.

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Of course, I say that as a person who isn’t the biggest fan of federalism anyway — not withstanding the fact that federalism is right now the only thing standing between us and the Kingdom of the Aggrieved Whites.

I’m also a little worried that this proposed change seems designed to go after Michael Cohen, and I’m pretty sure that whole “No Bill of Attainder or ex post facto Law will be passed” thing is an important part of a free society.

But, Professor Lawrence Tribe says I have nothing to worry about there.

It really does bring us back to “Trump’s situation.” There really are three types of lawyers right now:

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A. The ones concerned about Trump who still want to pretend the law can contain him.
B. The ones concerned about Trump who believe he is a unique threat to the rule of law.
C. The ones who are not concerned about Trump.

Group C can shove a snifter of brandy right up their white privileged asses. There’s a bigoted despot on the throne who may have assaulted 19 women, mercilessly attacks the fourth estate and the third branch of government, and is probably being blackmailed by the Russians. YOU SHOULD BE CONCERNED.

But between groups A and B, there is a lot of legitimate disagreement. Group A looks at all the things Trump hasn’t been able to do, says “the law is working,” and concerns itself with what will be left standing in the post-Trump world.

Group B looks at all the things Trump has already done, decides that they will not be reduced back to a state of humiliation and bondage just because an executive order says so, and is absolutely willing to burn to the ground what they can’t defend from Trump’s forces.

I count myself among Group B. If I can’t defend a fort from Trump getting his dirty hands on it, I’m gonna blow up the fort. Trump is an occupying force, my DUTY is to make things hard enough on him that he and his people give up and go back home to their WWE matches.

And so this is why we can’t have nice things. New York’s double jeopardy loophole must be lit on fire and destroyed so Trump can’t use it.

Too bad. It was a nice little rule. I will add its passing to the ledger of things Trump has taken from us.

NY AG: To allow state prosecutions of pardoned Trump aides, change double jeopardy [ABA Journal]

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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