New York Attorney General Barbara Underwood is pretty rankled by President Donald Trump’s pardon of Dinesh D’Souza. Underwood is so irritated, she’s calling for New York to change what she’s calling the “double jeopardy loophole” to prevent things like this from happening again.
“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. 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. We can’t afford to wait to see who will be next. 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.”
She’s following the lead of former AG Eric Schneiderman, who fretted about a pardon controversy last year in a letter to state leaders.
The President’s power to pardon federal crimes is sweeping and subject to limited review by the other branches of government. Our country’s founders argued this power was “benign” and would be used by presidents with “scrupulousness and caution.”i Thus far, they have generally been right. Since the Nation’s founding, presidents have used this power sparingly, largely to do justice, rather than subvert it.
Yet recent reports indicate that the President may be considering issuing pardons that may impede criminal investigations. This is disturbing news, not only because it would undermine public confidence in the rule of law, but also because—due to a little-known feature of New York law that appears to be unique in its reach—a strategically-timed pardon could prevent individuals who may have violated our State’s laws from standing trial in our courts as well…
Because pardons have never, ever, ever, in the history of this country, been considered political. Ever (Roger Clinton and Mark Rich were unavailable for comment). It’s also important to note Arpaio and Libby were never charged in New York, so Underwood’s righteous indignation on the pardon issue is a little superfluous, but I could always be missing something.
Underwood is not complaining about the 5th Amendment of the U.S. Constitution but a New York law which doesn’t allow people to be tried twice for the same act or go to trial twice for “two offenses based upon the same act or criminal transaction.” Reason’s Jacob Sullum explains why New York passed the law in the first place.
According to the New York Court of Appeals, the state constitution’s ban on double jeopardy is no broader than the federal version, and the U.S. Supreme Court has said the Fifth Amendment does not preclude prosecuting the same person for the same actions in both state and federal courts. Although the underlying conduct may be identical, the Court says, the offenses are distinct because they are defined by “two sovereignties.”
To their credit, New York legislators recognized that the dual sovereignty doctrine is a license for injustice, allowing a defendant to be punished twice for the same crime or tried again after an acquittal. They therefore enacted a law that says “a person may not be separately prosecuted for two offenses based upon the same act or criminal transaction.” There are 12 exceptions to that rule, but none of them covers objectionable pardons by Donald Trump. That is the “double jeopardy loophole” Underwood has in mind.
Here’s the bill the New York legislature is considering:
Section 1. Section 40.30 of the criminal procedure law is amended by adding a new subdivision 5 to read as follows:
5. (a) Despite the occurrence of proceedings specified in subdivision one, a person is not deemed to have been prosecuted for an offense, within the meaning of section 40.20, when such person has been granted a reprieve, pardon or other form of clemency for such offense pursuant to the authority granted in section two of article two of the United States constitution.
(b) Paragraph (a) of this subdivision shall not apply to a reprieve, pardon or other form of clemency for an offense if the person was convicted and sentenced for such offense and the reprieve, pardon or other form of clemency was granted five years or more after entry of judgment for such offense.
§ 2. This act shall take effect immediately, and shall apply to offenses committed on or after such date and shall also apply to offenses committed before such date where the proceedings specified in subdivision 1 of section 40.30 of the criminal procedure law have not occurred as of such date.
Yeah…this is wrong. The idea of not having to be tried twice for the same crime is pretty important and this notion the New York law needs to be changed to correct ‘presidential pardon errors’ is rather ridiculous. It could really set a dangerous precedent for the future if the wrong people get in power and decide to start punishing political opponents after they’ve been acquitted in a federal court.
Let’s be honest: yes, D’Souza (who I’m no fan of) admitted to a felony for doing straw donations to failed U.S. Senate candidate Wendy Long. I’m not sure the law he violated is really constitutional – despite Supreme Court rulings on the issue – because there are 1st Amendment issues in freedom of speech and freedom of association. I fail to see why people can’t give as much money as they want to candidates. I do think candidates should make it easier for people to see who has donated to their campaigns i.e. posting the information on their website or issuing news releases detailing the names of donors because it can help potential voters decide if they want to support said candidate if the donations are from various political bogeymen, women, and entities.
Let money talk and the voters decide. Also, don’t try people twice if they’ve already been acquitted or pardoned.