With President Trump not so subtly playing the pardon card as he publicly signals all his indicted and soon-to-be-indicted cohorts that they have nothing to worry about as long as they keep their mouths shut and don’t turn state’s witness, Americans worried about the proper administration of justice have always been able to take solace in the fact that Special Counsel Robert Mueller has reportedly been keeping the Attorney General of New York State in the loop on his investigations.
The theory goes that if Mueller wins convictions against any of the Trump-connected players in the long sordid saga, and then Trump turns around and pardons them, their cases can be brought back to state court where presidential pardons have no power.
Now, however, attention has been focused on a potential problem with that strategy, according to articles on The Hill and PoliticusUSA.
Acting New York Attorney General Barbara Underwood raised the issue today of the double jeopardy loophole, which could mean that New York may not be able to prosecute on the state level anyone pardoned by the president, and urged New York State lawmakers to close the loophole as soon as possible.
Underwood was reacting to the pardon that Trump issued to right-wing campaign contribution law violator Dinesh D’Souza when she issued the following statement today:
“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,” Underwood began.
“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,” she continued.
“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.”
Underwood amplified a request made in April by her predecessor former Attorney General Eric Schneiderman before he stepped down due to accusations of sexual misconduct towards women.
While states do have the right to prosecute crimes against laws within their jurisdiction, New York, along with some other states, has passed laws preventing double jeopardy prosecutions of cases tried at the federal level… with some exceptions.
Law professor and former FBI agent Asha Rangappa explained the details of the situation in a thread on Twitter.
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
4. However, some states, like New York, have added double jeopardy protections against such successive prosecutions, by statute. @jedshug has several articles on this topic, the most recent anticipating the AG https://t.co/C4OyYxmilf
— Asha Rangappa (@AshaRangappa_) April 18, 2018
6. For example, the NY statute doesn't apply if a fed court vacates or overturns a federal conviction. In that case, NY is still fine to try the person for state crimes. The AG is saying that pardons function the same way, and should not impede state prosecutions, either.
— Asha Rangappa (@AshaRangappa_) April 18, 2018
7. 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.
— Asha Rangappa (@AshaRangappa_) April 18, 2018
9. So the question is whether, if he is inclined to pardon, he has the patience and foresight to wait until then (which could mean more searches, more interviews, and potentially more charges), or he gets too anxious and just pulls the trigger. Take your wagers.
— Asha Rangappa (@AshaRangappa_) April 18, 2018
All of this is still conjecture at this point of course since Trump has yet to issue pardons to anyone involved in Special Counsel Robert Mueller’s inquiry. However, Trump’s willingness to issue pardons that undermine rather than reinforce the rule of law at his whim does make action by the New York State Legislature to close this loophole imperative as Acting Attorney General Underwood suggests.
Asha Rangappa does offer one ray of hope in case the legislature does not act in time.
P.S. As several folks are noting, the above applies to prosecutions of the *same conduct* in both fed and state. Conduct that is a crime under state law and not even charged by the feds are still fair game!
— Asha Rangappa (@AshaRangappa_) April 18, 2018
Given that Mueller is a very strategic player, it would be worth watching exactly what charges are and are not brought against the people he indicts. The omission of certain charges could be deliberate and potentially set up a series of back up charges at the state level.
Stay tuned to see how it all plays out.
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