LI Senator Proposes Law To Stop Trump From Pardoning NY Crimes

Following a recommendation from Attorney General Eric Schneiderman, state Sen. Todd Kaminsky proposed a law on Wednesday that would close a loophole in New York's Double Jeopardy law that could conceivably be used to allow the president to pardon state crimes, which is unconstitutional.

Double Jeopardy is a Constitutional protection that, in its most basic form, says a person can't be tried for the same crime twice. It's designed to stop a government from trying a person over and over again if they don't get a guilty verdict.

According to Schneiderman, New York is one of a few states that has more stringent Double Jeopardy protection — the state protects against trying a person again for a crime where another jurisdiction (like another state) has already prosecuted them for that crime.

However, New York's law says that when a defendant pleads guilty, or if a jury is sworn in for a trial in another jurisdiction, then the Double Jeopardy rule applies. According to Schneiderman, if the charges were federal, then New York cannot also charge someone for those crimes, unless an exception applies. The state provides an exception if a court nullified the criminal proceeding or if a federal court overturns a federal conviction.

The problem, Schneiderman says, is that there is no exception made for a Presidential pardon. "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, this New York statute could be invoked to argue that a subsequent state prosecution is barred," Schneiderman wrote in a letter to the governor and the leaders of both state houses. "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 U.S. Constitution to pardon state crimes."

In his letter, Schneiderman asked the state to plug the loophole, saying it was in no way what the drafters of New York's Double Jeopardy laws meant.

Kaminsky, a Democrat from Rockville Centre, agreed with the Attorney General's assessment, and has already put forward a law to fix the loophole.

"The Double Jeopardy loophole allows criminal behavior to go unpunished in our state and needs to be closed," Kaminsky said in a statement. "The writers of our state’s strict Double Jeopardy statute did not take into account the President’s pardon power, and certainly did not contemplate the capricious use of that power to undermine the rule of law."

You can read Schneiderman's full letter here.

Photo: Senator Kaminsky's Office