New York state has long functioned as the ace up the sleeve of President Trump’s critics.
The reasoning goes like this: Trump could attempt to pardon people implicated in the Russia probe, whether Michael Cohen, Paul Manafort, or someone else, thus preventing a trial or perhaps insulating himself from legal ramifications. The vast discretion affording the chief executive in the pardon power would allow the president to short-circuit accountability. However, the pardon power only applies to federal laws, so another jurisdiction could haul figures like Cohen and Manafort, or even potentially Trump himself, into state court. Practically speaking, that would probably happen in New York, the president’s home. The state has more robust financial-crime laws than most, because of the presence of the banking industry, and in Attorney General Eric Schneiderman it has a prosecutor who clearly relishes going after Trump.
The problem, as Fordham Law Professor Jed Shugerman laid out in Slate Tuesday, is that it simply might not work. Foundational to the U.S. legal system is the prohibition on double jeopardy, which prevents a defendant from being tried twice for the same crime. State and federal court systems are separate, but many states, including New York, have recognized that a defendant who has been tried once in federal court should not be hauled into state court for the same act. (The U.S. Department of Justice also has a policy against it.)