Pardoned by Trump or Not, New York AG Wants to Prosecute

by | April 19, 2018 AT 10:09 AM

By Glenn Blain

New York Attorney General Eric Schneiderman is urging state lawmakers to quickly close a loophole in state law that could prevent him from bringing charges against anyone pardoned by President Trump.

"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 said.

"We must ensure that if the president, or any president, issues such pardons, we can use the full force of New York's laws to bring such individuals to justice," Schneiderman continued.

In a letter to Gov. Cuomo and legislative leaders, Schneiderman said a quirk in New York's double jeopardy law shields anyone who's pleaded guilty to a federal crime or who had a jury sworn in from facing state charges based on the same act or transaction.

"Thus, if a federal defendant pleads guilty to a federal crime, or if a jury is sworn in a federal criminal trial against that defendant, and then the president pardons that individual, this New York statute could be invoked to argue that a subsequent state prosecution is barred," the attorney general wrote in the letter.

"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," he added.

Schneiderman urged Cuomo and the Legislature to swiftly add an exception to New York's double jeopardy law that ensures a state prosecution would not be "barred by a proceeding that the president annulled by issuing a pardon."

Assembly Speaker Carl Heastie (D-Bronx) said Schneiderman "has raised this serious issue and we will take a close look at it."

Cuomo press secretary Dani Lever said the governor "believes that the federal legal system should not provide a basis for any wrong doers to escape justice. To that end, we are reviewing the proposal and look forward to working with the Attorney General on the issue."

Senate Majority Leader John Flanagan (R-Suffolk County) did not immediately comment on Schneiderman's request.

State Sen. Todd Kaminsky (D-Nassau County) said he would introduce legislation to close the loophole.

"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.

Schneiderman said there is precedent for the Legislature to provide exceptions to the double jeopardy protections. After a court ruled that certain state tax charges against Leona Helmsley were barred because of a prior federal prosecution, the Legislature amended the law to enable the state tax fraud prosecution, he said.

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