New York Attorney General Pushes To Sidestep Any Trump Pardons

"Presidents have used this power sparingly, largely to do justice, rather than subvert it," Eric Schneiderman writes.

New York’s attorney general has asked officials to change state law so President Donald Trump’s aides can be tried for any criminal acts committed in the state, even if they have been given a presidential pardon.

In a letter sent to New York’s top lawmakers, including Democratic Gov. Andrew Cuomo, Attorney General Eric Schneiderman (D) said that he was troubled by Trump’s frequent discussion of his ability to issue pardons and that he was worried those who had committed crimes in the state would escape prosecution. New York has a double jeopardy law that prevents individuals from being charged with the same crime twice, even if the charges originated at the federal level.

“New York’s statutory protections could result in the unintended and unjust consequence of insulating someone pardoned for serious federal crimes from subsequent prosecution for state crimes,” Schneiderman wrote in the letter, dated April 18. “Even if that person was never tried or convicted in federal court, and never served a single day in federal prison.”

New York currently has 12 exceptions carved out of its double jeopardy law, and Schneiderman has proposed the pardon issue be carved out in a similar fashion. The Constitution protects against multiple prosecutions by the same sovereignty (such as the state or federal government) for the same offense.

“Since the Nation’s founding, presidents have used this power sparingly, largely to do justice, rather than subvert it,” Schneiderman writes in his letter. “Yet recent reports indicate that the President may be considering issuing pardons that may impede criminal investigations.”

There’s no indication that the attorney general’s office plans to prosecute any current or former aides, but as The New York Times noted, Schneiderman has long clashed with Trump. The president himself has called him “the nation’s worst AG.”

Trump’s lawyers reportedly raised the idea of pardons last year for former national security adviser Michael Flynn and onetime Trump campaign manager Paul Manafort, according to the Times. Both have been indicted as part of special counsel Robert Mueller’s probe into Russian interference in the presidential election, and Flynn has already pleaded guilty to lying to the FBI.

Last week, Trump issued a contentious pardon of I. Lewis “Scooter” Libby, the former chief of staff to Vice President Dick Cheney in the George W. Bush administration. Libby was convicted of perjury and obstruction of justice in 2007 after a leak that revealed the name of a CIA agent.

“I don’t know Mr. Libby, but for years I have heard that he has been treated unfairly,” Trump said in a statement. “Hopefully, this full pardon will help rectify a very sad portion of his life.”

Schneiderman said he hoped to hold any pardoned aides accountable for their actions in the state, saying he didn’t believe the broad nature of state law was meant to help criminals avoid prosecution.

“The Legislature could not possibly have intended this result,” he wrote. “I stand ready to work with you to advance such legislation.”

Clarification: Language in this story has been amended to clarify the constitutional protections against multiple prosecutions for the same offense.

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