The State of New York just created a legislative end-run around the American presidency’s Constitutional power to pardon.
On Wednesday, New York Governor Andrew Cuomo signed into law S.4572 which closes the so-called “Double Jeopardy Loophole.”
The measure originally passed the New York State Legislature in May of this year and was sold from its inception as a preemptive antidote to alleged abuses of the pardon power by President Donald Trump.
“With the President all but pledging to corruptly abuse his pardon power to allow friends and associates off the hook, it is crucial that we have closed the Double Jeopardy loophole and preserved the rule of law in New York,” said New York State Senator Todd Kaminsky, a former federal prosecutor and sponsor of the bill.
Titled “Previous Prosecution: Presidential Reprieve, Pardon, or Other Form of Clemency,” the new law allows state prosecutors to bring charges against “a person [who] has been granted a reprieve, pardon or other form of clemency for an offense,” if authorities can show the would-be defendant has a clear conflict of interest with the president. Examples include: a current or former staff member; a current or former political appointee; or a family member related to the president by blood or by marriage “within the sixth degree.”
The new measure also allows for the prosecution of individuals who were gifted a pardon in exchange for materially benefitting the president or to avoid “potential prosecution or conviction.” Additionally, pardoned people who possess information central to an investigation of the president can now be targeted.
The law sets out a middling burden of proof known as “clear and convincing evidence,” which prosecutors would have to show in order to make their case. This is substantially higher than law enforcement’s typical metric of “probable cause” (used to authorize searches, make arrests and issue indictments) and just a notch lower than the criminal conviction metric of “beyond a reasonable doubt.” In theory, at least, clear and convincing evidence is a fairly high bar.
And that’s all by design. New York State legislators intended the legislation to be fine-tuned in order to specifically deal with President Trump and his potentially untoward use of the pardon power. Such concerns are hardly academic.
In March of this year, Trump’s former attorney Michael Cohen provided evidence to Congress that the 45th president attempted to obstruct justice by dangling a pardon. Per Cohen, the pardon was dangled before he agreed to cooperate with federal prosecutors.
Robert Costello, an attorney long associated with Rudy Giuliani, emailed Cohen on April 21, 2018. Over the course of two emails, Costello assured Cohen he could “sleep well tonight” because he had “friends in high places,” according to CNN.
In August of this year, the Washington Post reported that Trump similarly dangled pardons to multiple underlings in a bid to expedite construction of his oft-promised wall along the U.S.-Mexico border.
According to that report, Trump “has told worried subordinates that he will pardon them of any potential wrongdoing should they have to break laws to get the barriers built quickly, those officials said.”
Are there Constitutional issues at play here? Yes and no.
While it’s true that the Double Jeopardy clause of the Fifth Amendment protects individuals from being prosecuted twice for the same federal offense, the dual sovereignty doctrine allows state governments to prosecute individuals for offenses arising from the same conduct.
As Law&Crime’s Elura Nanos previously noted, however, “New York, (like many other states), currently guarantees its citizens more protections than are strictly required under the U.S. Constitution.”
This protection is enshrined under New York Criminal Procedure Law § 40, which grants additional protections for defendants who were previously prosecuted by the federal government, even if they were later pardoned. Wednesday’s new measure is a small change to this protection.
“You’ve got to really love New York,” Nanos said. “As important as it is to set up a system that would allow Trump and his cohorts to be prosecuted, New York wasn’t willing to sacrifice its entire system of justice to do so. That’s why the bill…only changes the double jeopardy rules for those directly tied to Trump — and doesn’t work retroactively.”
[image via MANDEL NGAN/AFP/Getty Images]
