Schneiderman seeks way around possible presidential pardons

- April 18, 2018

ALBANY — Attorney General Eric Schneiderman is urging lawmakers to change the state’s double jeopardy law in case President Donald Trump attempts to use his pardon power to protect himself or his aides from criminal prosecution.

Schneiderman, a Democrat who has been a vocal critic of the Trump administration and the president's business dealings, sent a letter to legislative leaders Wednesday asking them to exempt state charges in cases that involve a presidential pardon from the double jeopardy law. Otherwise, Schneiderman wrote, New York’s relatively broad protections against double jeopardy could be abused to shield defendants beyond what the Constitution allows.

“Simply put, a defendant pardoned by the President for a serious federal crime could be freed from all accountability under federal and state criminal law, even though the President has no authority under the U.S. Constitution to pardon state crimes,” Schneiderman wrote.

The specter of a presidential pardon has been raised in the aftermath of the FBI’s raid on Trump’s personal lawyer and longtime associate Michael Cohen. Documents seized in the raid, which was conducted as part of a wide-ranging federal investigation that includes an alleged hush-money payment to an adult film actress, have been subject to an ongoing court battle in Manhattan.

“We are disturbed by reports that the president is considering pardons of individuals who may have committed serious federal financial, tax, and other crimes — acts that may also violate New York law,” Schneiderman wrote.

Theoretically, a pardon for Cohen would prevent New York from being able to pursue violations of state law related to his business dealings, such as making false statements to a bank. Schneiderman wrote that he and his staff believe the double jeopardy law was never intended to have the effect, and lawmakers have already carved out a dozen exemptions to the law.

“Any amendment should be narrow and ensure only that a state prosecution is not barred by a proceeding that the President annulled by issuing a pardon,” Schneiderman wrote. “The amendment could be modeled on existing provisions that enable subsequent prosecution when a prior proceeding is nullified by court order. "

Schneiderman’s letter was first reported by The New York Times.

State Sen. Todd Kaminsky (D-Long Beach), a former federal prosecutor, quickly said he would introduce the necessary legislation.

“The writers of our state’s strict Double Jeopardy statute did not take into account the President’s pardon power, and certainly did not contemplate the capricious use of that power to undermine the rule of law,” Kaminsky said in a statement. “I will be introducing a bill in the Senate to address the glaring loophole that Attorney General Schneiderman has highlighted, and will work to ensure its passage so that New Yorkers can rest assured that no person is above the law and that unlawful acts will not go unpunished.”

Kaminsky and other Democrats remain the minority conference in the state Senate, though it is possible that they take control of the chamber before the scheduled end of the legislative session in June. A spokesman for Senate Republicans did not have an immediate comment on Schneiderman’s letter.

A spokeswoman for Gov. Andrew Cuomo, a Democrat who's positioning himself for a possible presidential run, said the office is reviewing Schneiderman's proposal and will work with him on the issue.

"Governor Cuomo believes that the federal legal system should not provide a basis for any wrongdoers to escape justice," Dani Lever said in a statement.

Trump and Schneiderman have been at odds for years. The attorney general launched a fraud investigation into the now-defunct Trump University and probes into Eric Trump’s charitable foundation. Trump has personally attacked Schneiderman’s appearance and called him “the nation’s worst AG” and a “lightweight,” among other barbs, on Twitter.

POLITICO in August reported that Schneiderman’s office was sharing evidence and communicating with special counsel Robert Mueller's office, which at the time was looking into former Trump campaign chairman Paul Manafort and his financial dealings.

State-level investigations into areas encompassed by the special counsel have largely been on pause since Mueller ramped up his work, though they would likely be restarted if the special counsel probe is shut down.


 

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