On the surface, this sounds like just another day ending in a Y. New York State is probably second only to California when it comes to showboating and grandstanding in the movement to #RESIST President Donald Trump. It seems as if every month there’s either a new law being passed or a fresh lawsuit being filed against the White House, usually being trumpeted by Governor Andrew Cuomo, State Attorney General Eric Schneiderman, or both. This week is no exception as the state attempts to make a change to existing law which would allow New York to prosecute people granted pardons by the President.
Unlike many of their other public relations efforts to please their liberal base, however, this one just might work. The Hill has the details.
New York lawmakers have introduced legislation that would allow prosecutors to bring state charges against individuals who have benefitted from a presidential pardon.
State Sen. Todd Kaminsky (D) and Assemblyman Joseph Lentol (D) introduced legislation on Friday after Attorney General Eric Schneiderman requested state law be amended to address a so-called loophole that prevents an individual who has been pardoned by the president from being charged with state crimes.
Schneiderman wrote to Gov. Andrew Cuomo (D) and leaders of the state legislature earlier this week, arguing that as a result of the current policy, a “strategically-timed pardon” could protect individuals who have violated New York laws.
The Attorney General isn’t making any secret of why he wants to do this and it’s not just for routine housekeeping of the state’s laws. Donald Trump is a New York resident, as are many of his campaign aides and close associates who have been mentioned as possible pardon recipients.
At first glance, this may sound unlikely to some of us. After all, once the President grants someone a pardon they’re off the hook, right? Not really. The President can grant pardons for federal crimes, but the Supreme Court has long since ruled that he or she can’t pardon state crimes. But several states (including New York) have passed laws in the past which protect presidential pardon recipients from prosecution at the state level. Now that Trump’s in charge, however, such niceties are a thing of the past.
Some observers might object to the idea because it sounds as if it could lead to a double jeopardy situation. But that’s not really applicable either and the reasons for this are the same as a previous case we covered dealing with Kate Steinle’s killer. Even if someone is accused, or even convicted of a federal crime, the states are still allowed to prosecute them for the same offense under applicable state laws because of what’s known as the “dual sovereignty doctrine.” That principle holds that the state and federal governments are each sovereign governmental entities and can bring their own charges against a suspect without running afoul of double jeopardy considerations.
But as I mentioned in the Steinle case, it’s worth keeping an eye on Gamble v. United States, where it’s being argued that dual sovereignty is far too broad and needs to be more tightly defined. That might impact what New York is working on here. But unless such a change takes place, Schneiderman may actually be able to pull this off and attempt to prosecute presidential pardon recipients if the state legislature approves these changes.