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.)
On Wednesday, Schneiderman moved to try to close up this “double-jeopardy loophole,” writing a letter to Governor Andrew Cuomo and leaders of the New York State Legislature and asking them to close it, explicitly tying the request to Trump.
He acknowledges the importance of protections, but writes that “recent reports indicate that the President may be considering issuing pardons that may impede criminal investigations.” He continues, “New York’s statutory protections could result in the unintended and unjust consequence of insulating someone pardoned for serious federal crimes from subsequent prosecution for state crimes—even if that person was never tried or convicted in federal court, and never served a single day in federal prison.”
At issue is the question of when jeopardy “attaches,” or takes effect. That can happen when a defendant pleads to a crime, or when a jury is sworn in. A president could wait until a jury was sworn in or a plea entered, and then pardon them, and the former defendant could then cite the New York statute to prevent being tried in state court.
“Simply put, a defendant pardoned by the President for a serious federal crime could be freed from all accountability under federal and state criminal law, even though the President has no authority under the U.S. Constitution to pardon state crimes,” Schneiderman wrote.
It’s not uncommon for the legal system to work in the opposite direction, where a federal court picks up where a state court fails—such as in the case of the federal government prosecuting civil-rights violations when state courts acquit defendants for crimes like lynching. Schneiderman effectively wants to give states the right to do the same.
“Over time in American history, at each state when a crisis happens, we learn about our constitutional systems. We make important changes when we learn from a constitutional crisis,” Shugerman told me Wednesday. “I think this is one of these moments.”
As the attorney general wrote, such a change to state statute would not be without precedent. In 2011, at his behest, the legislature closed the “Helmsley loophole,” which was named for the flamboyant hotelier Leona Helmsley. She had avoided state charges for tax cheating on the basis that she had already been tried in federal court. Schneiderman argued, and the legislature agreed, that the double-jeopardy protection was not intended to allow people like Helmsley to escape prosecution in state courts.
“There are a number of exceptions under New York law to the general rule, and what he is simply urging is that there be another exception added,” Peter M. Shane, a professor of law at Ohio State, said. “If a presidential pardon kicks in, then the person obviously would not have been tried twice. They would not have had to face a jury more than once.”
Through a spokeswoman, Cuomo quickly endorsed the idea: “Governor Cuomo believes that the federal legal system should not provide a basis for any wrong doers to escape justice. To that end, we are reviewing the proposal and look forward to working with the Attorney General on the issue.”
Schneiderman did not propose legislative language, but he said he felt confident that legislation could be written narrowly tailored to the case of a presidential pardon that would pass constitutional muster and withstand a challenge in court.
Some observers have hesitations about such a maneuver. Oliver Koppell, a former New York attorney general, told me he didn’t see the existing system as a loophole, and worried about unintended effects of tweaking it: A narrowly tailored law risked veering toward a bill of attainder, while a broader one could produce unintended effects. “I think hard cases make bad law, and I’m kinda skeptical about this,” he said.
Shugerman said Schneiderman’s solution seemed reasonable, by applying to all presidential pardons, though he said he would go further and eliminate the state double-jeopardy protection altogether, reasoning that the federal dual-sovereignty already provides sufficient protection, by simply stating that each jurisdiction gets a single chance to prosecute a crime.
Trump has already shown a willingness to wield the pardon power brusquely, pardoning Joe Arpaio for federal contempt of court and I. Lewis Libby for obstruction of justice, perjury, and false statements. In both cases, the president circumvented the standard Justice Department pardon process. He has also reportedly inquired about using a pardon for himself if need be.
On Wednesday, Representative Adam Schiff, a California Democrat, introduced a bill intended to block Trump from issuing pardons in the Russia probe, but it’s not clear the bill could pass, nor that it is constitutional.
“It’s not that unusual for a president to issue a pardon that might be politically controversial,” Shane said. “What is unusual, but we’re living in unusual times, is the specter of a president using his pardon power to exempt himself from legal accountability.”
This remains a hypothetical danger, so far. If Schneiderman gets his wish, it will remain in the realm of the hypothetical.