The AG’s pardon play
New York’s attorney general is pushing for a reform of state criminal statute that is both incredibly narrow and potentially earth-shattering. His proposed fix should become law as soon as possible, lest the President of the United States use his power to neuter responsible prosecutors.
The Fifth Amendment of the U.S. Constitution asserts that no person shall “be subject for the same offence to be twice put in jeopardy of life of limb.”
That means once you’re tried and acquitted, or convicted, you don’t get put through the legal wringer a second time.
Like every other right in that foundational document, it’s not absolute. The feds have their laws and courts; the states have theirs.
About half of the states don’t prohibit their prosecutors from pressing cases the feds have tried and failed to make; they fully embrace what’s known as sovereign immunity.
The rest of the states have explicit restrictions on the books. The Empire State’s double jeopardy law, preventing state district attorneys from hauling people into court on a given charge after the feds have convened a jury, happens to be just about the nation’s strictest.
And, oops, the Empire State also happens to be home to Donald Trump, and Paul Manafort, and Michael Cohen, and need we go on?
Schneiderman is asking for a narrow carveout to New York’s ban, atop a few other exceptions that already exist. It would say that in cases when, after the feds have brought charges to court or won a conviction, the President issues a pardon wiping them away, the crimes in question are still subject to state prosecution.
Not long ago, President Trump not-so-subtly pardoned former Dick Cheney aide Scooter Libby, who had been convicted of lying to federal prosecutors. The crystal clear-signal to his own inner circle as special counsel Robert Mueller threatens charges and looks to cut deals was: Hang on. Hold out. Even if you go down, I’ll bail you out with my pardon power.
Schneiderman wants to answer: Not so fast. New York’s Legislature should follow his lead.