New York State Closes Double Jeopardy 'Loophole,' But Only For Trump

It's a limited change meant to nerf the president's pardon power.

According to stock photography, this is supposed to represent pardons. (Image via Getty)

In general, I support the so-called “Double Jeopardy Loophole” available in New York State. The way it’s supposed to work is that you can’t be prosecuted by federal authorities and state authorities for the same crime.

That makes sense — the spirit of the Fifth Amendment is that the government shouldn’t get endless cracks at depriving you of liberty. You can scream “separate sovereign doctrine” at me as much as you want. The principle of double jeopardy is violated if one government entity can come after you, followed by the other.

Unfortunately, Donald Trump is president, and that means we can’t have nice things. It would appear that Trump, his associates, and his family have violated various federal and state laws. Some of Trump’s associates, like Paul Manafort and Michael Cohen, have already been convicted for financial crimes. There is a real worry that Trump might pardon these or other individuals in exchange for their ongoing silence. Given New York’s rules, those people would not be eligible to be prosecuted on the state level.

So, New York changed the rules. The state legislature passed a bill specifying that a presidential pardon will not invoke double jeopardy. From Courthouse News:

Changing the law to ensure that no presidential pardon will undercut a state prosecution, the New York State Assembly approved a bill Tuesday to snip the so-called double-jeopardy loophole.

For nearly a century the U.S. Supreme Court has recognized that criminal defendants can face parallel state and federal charges for similar conduct, but New York has long had a more exacting standard of double-jeopardy protections.

That distinction got a face-lift Tuesday, with Democrats now controlling all three branches of New York’s government.

Sending the bill to Governor Andrew Cuomo’s desk this afternoon, the move follows speculation that strategic pardons could scuttle cases like New York’s recent indictment of Paul Manafort, the federally imprisoned former campaign chairman of President Donald Trump.

New York also passed a law that authorizes them to release Trump’s state tax returns if they are requested by the appropriate Congressional committee. That one is drawing more headlines, because President Trump has been so clearly afraid of releasing his taxes, most likely for fear of the corruption buried in those documents.

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But this pardon change will probably be the more consequential bill. In the future, other presidents might want to pardon individuals for more legitimate reasons. But that power is now reduced, and pardoned individuals could face additional prosecutions because of this bill.

So, it’s not ideal. But we are living under the reign of a criminal president who scoffs at the rule of law. We have to protect ourselves from this man, in any way we can. We’ll worry about the fallout once he’s gone.

Pardon Loophole Gets the Ax From New York Lawmakers [Courthouse News Service]


Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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