New York's attorney general is making a bold proposal to circumvent Trump's pardon power

  • The New York attorney general, Eric Schneiderman, wants to amend the state’s law to allow for the prosecution of people who have been pardoned by the president in federal investigations.
  • Currently, New York law has a “double jeopardy” clause which protects people from being tried for the same crimes more than once.
  • In other words, if someone is pardoned for a federal crime – like conspiracy, money laundering, or obstruction of justice – they cannot be tried for the same crime on a state level.
  • While it’s unclear if Schneiderman’s proposal will withstand legislative scrutiny, “given the situation staring at everyone with respect to Mueller’s investigation and the real possibility of pardons, this is not a totally theoretical discussion,” said one former federal prosecutor.

Eric Schneiderman, New York’s attorney general, is asking the state’s governor and legislature to approve a change to New York law that would allow for people who receive presidential pardons to be tried for those crimes under state law, The New York Times reported.

According to a letter Schneiderman sent New York Gov. Andrew Cuomo and the majority and minority leaders of the legislature, he is concerned President Donald Trump may be “considering issuing pardons that may impede criminal investigations.”

Schneiderman called the development “disturbing,” saying it would undermine public confidence in the legal system. He added that he was also concerned that the “double-jeopardy” protection in New York law could shield individuals who have violated the state’s legal code from having to stand trial if they are pardoned for those crimes on a federal level.

The special counsel Robert Mueller is currently investigating Russia’s interference in the 2016 US election and whether the Trump campaign colluded with Moscow to tilt the race in his favour. Mueller is also looking into whether Trump sought to obstruct justice when he fired FBI director James Comey last year.

So far, Mueller has charged 19 people – 13 of whom are Russian nationals – as part of the investigation. Four of Trump’s former associates have either been charged or have pleaded guilty and are cooperating with the special counsel.

Meanwhile, the US attorney’s office for the Southern District of New York is conducting a separate criminal investigation into Trump’s longtime personal lawyer and confidant, Michael Cohen. Cohen is reportedly being investigated for bank fraud, wire fraud, and violations of election law.

The SDNY is also investigating Paul Manafort, Trump’s former campaign chairman who has been indicted in the Russia probe, for possible money laundering.

Trump has repeatedly railed against Mueller, the Justice Department, and the FBI, calling the Russia investigation a politically motivated “witch hunt” and a “hoax.” He also grew enraged last week after learning the FBI had raided Cohen’s property and seized several devices, records, tape recordings, and documents, including communications between Trump and Cohen.

Schneiderman wrote that the country’s founders argued that the pardon power would be used “by presidents with ‘scrupulousness and caution.'” He suggested that while previous presidents used that power with caution, Trump may not.

Adding that he was pleased New York law protects criminal defendants from facing “successive punishments for the same acts,” Schneiderman said those same 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.”

A spokesperson for Cuomo said in a statement Wednesday that the governor believes “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.”

It looks like Schneiderman is trying to “set the table” to prepare for possible moves on Trump’s part to hamper the Russia probe and Cohen investigation, said Jeffrey Cramer, a former federal prosecutor who spent 12 years at the Justice Department.

He said that while it’s unclear if Schneiderman’s proposal will withstand legislative scrutiny, “given the situation staring at everyone with respect to Mueller’s investigation and the real possibility of pardons, this is not a totally theoretical discussion.”

That New York is the site of the proposal is significant as well.

Cramer said Wednesday that the state would constitute a good testing ground for a proposal like Schneiderman’s as it relates to Trump and his associates, because “many of the acts may have been committed there,” or New York banks may have been “used to funnel money.”

A central hub

Before he became president, Trump lived in New York, and his company, The Trump Organisation, is anchored in Manhattan. Cohen also lives in the state and has an office at Trump Tower in Manhattan.

Cohen joined the Trump Organisation in 2006 and left in 2017 to serve as Trump’s personal lawyer. The Trump Organisation has invited scrutiny for engaging in business dealings with shady characters in Azerbaijan, Georgia, Vancouver, Indonesia, Brazil, and more.

The building also used to be home to the office of Bayrock, a controversial real-estate investment firm that has been accused of financial crimes ranging from bank fraud to tax evasion to embezzlement.

The Russian-born businessman Felix Sater, who cofounded the firm, is a critical figure in the Russia probe and used to have standing meetings with Trump every week, Business Insider previously reported.

The Trump Organisation and Bayrock also partnered up to develop a Trump Tower in SoHo before the Trump Organisation mysteriously cut ties with the hotel near the end of last year.

Meanwhile, a USA Today investigation found that approximately 70% of buyers of Trump properties since June 2016 were limited-liability companies, compared with about 4% of buyers in the two years before.

And Manafort, who has been charged with dozens of financial crimes, is accused in Mueller’s indictment of wiring $US6.4 million from offshore accounts to purchase two New York properties – a condominium on Howard Street and a brownstone on Union Street – and a house in Arlington, Virginia.

Under current New York state law, the double jeopardy protection applies when a defendant pleads guilty or proceeds to a jury trial. In other words, if either of those things occur, a state cannot charge a defendant with the same crimes they were prosecuted for under federal law.

Schneiderman’s letter notes that New York provides an exception to the double jeopardy protection in cases where a court nullifies a prior criminal proceeding.

“But there is no parallel exception for when the President effectively nullifies a federal criminal prosecution via pardon,” Schneiderman wrote. “Thus, if a federal defendant pleads guilty to a federal crime, or if a jury is sworn in a federal criminal trial against that defendant, and then the President pardons that individual,” New York’s double jeopardy statute could be applied to protect the defendant from being tried for state crimes.

“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 US Constitution to pardon state crimes,” the letter said.

Reports first surfaced last year that the president has inquired about his power to pardon aides, family members, and even himself if need be.

Shortly after, Trump tweeted: “While all agree the U. S. President has the complete power to pardon, why think of that when only crime so far is LEAKS against us.FAKE NEWS.”

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