New York law could trump a par­don back­stop

The Record (Troy, NY) - - FRONT PAGE - By David Klep­per and Michael R. Sisak As­so­ci­ated press

AL­BANY, N.Y. » Paul Manafort’s in­dict­ment on state-level charges in New York could of­fer a blue­print for keep­ing Pres­i­dent Don­ald Trump’s as­so­ciates be­hind bars if he par­dons them on fed­eral charges stem­ming from the Rus­sia probe.

But those back­stop ef­forts could be up­ended if state law­mak­ers can’t close what some call the “dou­ble jeop­ardy loop­hole” — a New York law that state pros- ecu­tors see as a ma­jor hur­dle to tak­ing up cases that have al­ready been re­solved at the fed­eral level.

“If we do not close this loop­hole, and close it soon, New York­ers may never re­al­ize the jus­tice they de­serve,” said Sen. Todd Kamin­sky, a Long Is­land Demo­crat and spon­sor of leg­is­la­tion to tweak the law.

That push gained new mo­men­tum Wed­nes­day af­ter a Man­hat­tan judge un­sealed state charges ac­cus­ing the 69-year- old Manafort of con­duct­ing a year­long mort­gage fraud scheme that raked in mil­lions of dol­lars.

The state charges were an­nounced just min­utes af­ter Manafort was sen­tenced in the sec­ond of two fed­eral cases stem­ming from Spe­cial Coun­sel Robert Mueller’s probe of Rus­sian in­flu­ence on the 2016 elec­tion. They in­cluded al­le­ga­tions Manafort mis­led the U.S. gov­ern­ment about for­eign lob­by­ing work and en­cour­aged wit­nesses to lie on his be­half.

Some of the con­duct de­scribed in the New York in­dict­ment ap­peared to echo the charges and tes­ti­mony in Manafort’s fed­eral case in Vir­ginia, but Man­hat­tan Dis­trict At­tor­ney Cyrus Vance Jr. ap­peared to strate­gi­cally build his case around charges of mort­gage fraud and fal­si­fy­ing busi­ness records — which aren’t fed­eral crimes.

New York’s dou­ble jeop­ardy law doesn’t ex­plic­itly give state pros­e­cu­tors a green light to bring charges when a de­fen­dant has re­ceived a fed­eral par­don. Le­gal ex­perts say the omission was in­ad­ver­tent, but that could have big im­pli­ca­tions for New York’s abil­ity to in­ves­ti­gate and pros­e­cute the pres­i­dent’s as­so­ciates.

It’s quirky, too, be­cause a pres­i­den­tial par­don can’t waive state crimes.

“If the pres­i­dent were to is­sue a par­don, it would seem like jus­tice would be served by (Manafort) be­ing pros­e­cuted for state crimes.

The state law, as it is cur­rently writ­ten, doesn’t al­low for that,” said for­mer Man­hat­tan pros­e­cu­tor Re­becca Roiphe, now a pro­fes­sor at New York Law School.

New York state At­tor­ney Gen­eral Leti­tia James said Tues­day that she’s reached agree­ments with leg­isla­tive lead­ers on a bill re­vis­ing the dou­ble jeop­ardy law. She said she ex­pects a vote

within the com­ing weeks.

Vance said in a state­ment that his of­fice started in­ves­ti­gat­ing Manafort in March 2017 and that the probe “yielded se­ri­ous crim­i­nal charges for which the de­fen­dant has not been held ac­count­able.”

“No one is be­yond the law in New York,” Vance said.

Manafort is due to serve more than seven years in

prison for his fed­eral con­vic­tions, but Trump has raised the prospect of of­fer­ing him a “get out of jail free” card. The pres­i­dent has re­peat­edly de­fended Manafort and floated the idea of grant­ing him a par­don.

New York’s 16- count in­dict­ment al­leges Manafort gave false and mis­lead­ing in­for­ma­tion in ap­ply­ing for res­i­den­tial mort­gage

loans. It says that the fraud started in De­cem­ber 2015 and con­tin­ued un­til three days be­fore Trump’s in­au­gu­ra­tion in 2017.

Manafort is also charged with fal­si­fy­ing busi­ness records and con­spir­acy.

Stephen Gillers, a law pro­fes­sor at New York Univer­sity, said Vance’s case still has a good chance of suc­ceed­ing un­der the cur-

rent law be­cause the mort­gage charges are state crimes dis­tinct from the fed­eral al­le­ga­tions.

“Vance has left him­self a fair amount of breath­ing space to ar­gue that his pros­e­cu­tion does not vi­o­late the statute be­cause the crimes he’s pros­e­cut­ing are suf­fi­ciently dif­fer­ent from the crimes the United States pros­e­cuted,” Gillers said.

JAC­QUE­LYN MARTIN—AS­SO­CI­ATED PRESS

In this file photo taken on Mon­day, Nov. 6, 2017, Paul Manafort, Pres­i­dent Don­ald Trump’s for­mer cam­paign chair­man, leaves the fed­eral court­house in Wash­ing­ton. Rus­sian state tele­vi­sion sta­tions have jumped at what they per­ceive as a rel­a­tively mild sen­tence handed to for­mer Trump cam­paign chair­man Paul Manafort.

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