The New York Assembly passed a bill on Tuesday that closes the “double jeopardy” loophole, permitting state authorities to prosecute someone who receives a pardon from the president. The vote was 90-52.
Top Democrats in the state framed the change as a way to stand up to President Trump by removing a shield that had protected defendants from being prosecuted twice for similar crimes and could have benefited those receiving pardons.
“Right now the president’s threatened use of the pardon power is very troubling. It would be done to undermine an investigation to help out friends and family members,” state Sen. Todd Kaminsky, a former federal prosecutor and the bill‘s sponsor, told NPR.
The New York Senate passed its version of the bill earlier this month. Gov. Andrew Cuomo has promised to sign it.
The legal concept of double jeopardy says someone cannot be charged with and convicted of the same criminal act twice. But it kicks in only after a jury is convened or when a defendant enters a plea.
Under the change, if someone is granted a presidential pardon for a federal crime, New York authorities will be allowed to bring a case related to the same behavior.
“Every day we wait gives the opportunity for the president to undermine the rule of law without New York having the recourse to take action,” Kaminsky said.
Andy Goodell, a Republican assemblyman, said the bill is tantamount to “a poke in the eye” to Trump.
On the Assembly floor, Goodell said that with the double jeopardy loophole closed, what prevents federal prosecutors from charging defendants who received state-level pardons from Cuomo?
“Isn’t this opening Pandora’s box?” Goodell said. “This is a two-way street.”
Important to Trump’s inner circle is that the bill is not retroactive. The law would not apply to anyone who has been tried already or entered a plea — like former chairman of the Trump campaign Paul Manafort or Michael Cohen, Trump’s former attorney. They already have protection from further prosecution for the same behavior. Both are now serving federal prison sentences.
Trump has not pardoned any of his associates caught up in the Russia investigation, though he has dangled the possibility.
Other individuals, however, have received pardons from Trump, including Joe Arpaio, the die-hard Trump supporter and former Arizona sheriff; Dinesh D’Souza, the conservative commentator; and Lewis “Scooter” Libby, a onetime chief of staff to Vice President Dick Cheney.
While presidents have broad constitutional power to issue pardons for federal offenses, presidential pardons do not apply to state crimes, and New York Democrats say the bill is a bulwark against what they see as the possibility of an abuse of executive power, be it by Trump or any American president.
“We never thought we would have to worry about a state being involved in the review of presidential power,” said Democratic Assembly member Joseph Lentol. “It doesn’t have anything to do with this president. It has to do with presidential power, period.”