One of the President’s few untrammeled powers is his ability to issue pardons. It has long been understood that the President can pardon anyone he wants and for any reason – the President’s ability to dispense pardons is designed to exist without external constraint.
However, Donald Trump has, as he has in so many other ways, challenged the norms that have long under-girded the pardon system. While the President has not yet pardoned anyone associated with the Russia investigation, he has not hesitated to dangle the possibility of pardons to those involved, especially Paul Manafort, his former campaign manager.
Many of the alleged crimes committed by Trump’s associates took place in or near the President’s hometown of New York City. This has made the legal questions related to the President’s behavior of great interest to New York officials.
In May, New York state’s Democratically controlled state legislature moved to close what they saw as a loophole in the state’s double jeopardy law. Under the legislation, which is still awaiting the approval of Governor Andrew Cuomo, state authorities will be able to pursue charges against individuals who have been pardoned by the President.
What The Bill Does
Double jeopardy is an important legal concept that says no one can be charged or convicted twice for the same crime. Under current New York law, state prosecutors are not allowed to bring charges against individuals who have received a presidential pardon based on the same set of facts. This is in spite of the fact that Presidents cannot pardon individuals facing state or local charges.
This prompted state officials, led by Attorney General Letitia James, to push for a new law closing the double jeopardy loophole. James and Democratic legislators made no secret of the fact that they were targeting Donald Trump, though they emphasized that the bill would apply to future Presidents regardless of party.
The New York Senate and Assembly, both controlled by Democrats, successfully passed bills in May that would close the loophole. The bill does not allow state prosecutors to bring charges against individuals who have been charged or convicted at the federal level – it’s targeted squarely at those who have received a presidential pardon for a federal crime while also allegedly breaking state laws in the process.
James was quoted in The New York Law Journal as saying, “If a crime is committed under New York law, we must have the ability to prosecute that crime. We must protect our sovereignty.”
As of July 7, Governor Cuomo, a Democrat, had not yet signed the bill. He has indicated he supports it.
A Hypothetical Concern?
Importantly, the New York bill is not retroactive. As such, it would not apply to Manafort, Michael Cohen or any other Trump associate who has already been charged or pleaded guilty at the federal level and receives a presidential pardon. Cohen, who has cooperated with the federal government and earned Trump’s ire, is not in line for a presidential pardon. Trump has made clear, however, that he is considering a pardon for Manafort, and his public comments to that effect likely played a role in holding Manafort’s loyalty.
This has led critics – including Republicans in the state legislature – to dismiss the bill as a gtandstanding response to a mere hypothetical concern. The bill passed along party lines in both houses of the legislature, and there’s no doubt that Democrats in Albany see a political benefit to demonstrating their anti-Trump credentials to their progressive constituents.
The bill received a boost in June from an unrelated Supreme Court case. In a 7-2 ruling, the Court refused to change a long-term interpretation of the double jeopardy rule that allowed defendants to be charged twice for the same crime by state and federal authorities. Under the concept of “separate sovereigns,” state and federal courts can try a defendant for the same crime.
While the case in front of the Supreme Court involved a Georgia man who was charged with a gun crime, it received significant attention for its relevance to the President. The Department of Justice argued in favor of maintaining the current “separate sovereign” arrangement.
In a rare team-up, Justices Ruth Bader Ginsburg and Neil Gorsuch both dissented in the case.