One way that Robert Mueller and the FBI have been preparing to fight against the prospect of Donald Trump pardons is by sharing their information with New York prosecutors. The plan is to have New York bring state criminal charges if Trump issues federal pardons. Pardons have been anticipated for such criminals as Paul Manafort, Michael Flynn, Rick Gates and others yet to be charged, such as Michael Cohen.
However there is a little-known law in New York state that could throw a wrench in the works. It is called “the double jeopardy loophole.” This loophole may mean that New York cannot bring state criminal charges against people pardoned by the president.
After Trump’s announced pardon of Dinesh D’Souza yesterday the acting New York Attorney General, Barbara Underwood, raised the alarms. In a formal statement Underwood said:
“President Trump’s latest pardon makes crystal clear his willingness to use his pardon power to thwart the cause of justice, rather than advance it. By pardoning Dinesh D’Souza, President Trump is undermining the rule of law by pardoning a political supporter who is an unapologetic convicted felon. First, it was Sheriff Joe Arpaio. Then it was Scooter Libby. Now it’s Dinesh D’Souza.”
“Lawmakers must act now to close New York’s double jeopardy loophole and ensure that anyone who evades federal justice by virtue of a politically expedient pardon can be held accountable if they violate New York law.”
Trump’s pardons and Underwoods statement elicited intense reactions on social media. One person said Trump “is acting like a dictator gone wild.”
“Barbara Underwood, New York’s attorney general makes urgent call to pass a law to circumvent ‘politically driven pardons’ by criminal con-man Trump — who in a grotesque abuse of authority unimagined by our founders, is acting like a dictator gone wild”
Barbara Underwood, New York’s attorney general makes urgent call to pass a law to circumvent 'politically driven pardons' by criminal con-man Trump — who in a grotesque abuse of authority unimagined by our founders, is acting like a 'dictator gone wild' https://t.co/29fsuP3ZZO
— Bill Madden (@activist360) May 31, 2018
Another commentator posted a Twitter thread explaining the details of the double jeopardy law. Asha Rangappa, a law professor and former FBI agent, wrote:
“As a purely constitutional matter, states can bring a prosecution for someone under state law, even if they are prosecuted for federal crimes. This is not a violation of the 5th Amend. prohibition on double jeopardy, because of a principle called “dual sovereignty.”
“The idea behind dual sovereignty is that the the Tenth Amendment reserves to the states powers that existed before the creation of the federal government — including the power to prosecute state crimes. However, some states, like New York, have added double jeopardy protections against such successive prosecutions, by statute.
The key is that the statute is triggered once a jury in the federal case is sworn in. What the AG is arguing is that the statute makes several exceptions for when, even after that, the fed case doesn’t come to fruition. He wants pardons to be added to that list of exceptions.
If NY doesn’t change the law, then the president would have to carefully time his pardon until *after* a jury is sworn in to inoculate Cohen and others from state charges. If he pardons before that, they would still be fair game for the AG.”
THREAD (could be lint, not sure yet). The Attorney General of NY is asking the Governor and legislature to amend its laws to permit a successive state prosecution in the event that the President pardons someone for federal crimes which are also crimes under state law. Why?
— Asha Rangappa (@AshaRangappa_) April 18, 2018
2. As a purely constitutional matter, states can bring a prosecution for someone under state law, even if they are prosecuted for federal crimes. This is not a violation of the 5th Amend. prohibition on double jeopardy, because of a principle called "dual sovereignty."
— Asha Rangappa (@AshaRangappa_) April 18, 2018
Underwood’s predecessor, former New York Attorney General Eric Schneiderman sent a letter to the New York Legislature in April requesting that they immediately close the loophole in the double jeopardy law. There has been no action yet on this request.
Closing the loophole would prevent individuals who broke the law in New York from avoiding accountability through a presidential pardon and this would be critical if we are to see justice. For the good of America, New York needs to close the double jeopardy loophole ASAP.
I am a lifelong Democrat with a passion for social justice and progressive issues. I have degrees in writing, economics and law from the University of Iowa.