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Aiming to Trump Trump Pardons, Schneiderman Seeks Closure of State Double Jeopardy 'Loophole'

[caption id="attachment_28094" align="alignnone" width="620"] Eric Schneiderman. Photo: Tim Roske[/caption] Attorney General Eric Schneiderman asked state legislators Wednesday to close a double jeopardy loophole in state law that would potentially allow associates of President Donald Trump to avoid state prosecution if granted a presidential pardon. In a letter to the respective heads of the state Legislature, along with Gov. Andrew Cuomo, Schneiderman argued that the norms of the office of the president that kept the power of the pardon from being abused could not be counted on to hold under Trump. Last week, Trump pardoned former Vice President Dick Cheney's chief of staff, Lewis "Scooter" Libby, who was convicted in 2007 of perjury and obstruction of justice in the disclosure of CIA officer Valerie Plame's identity. The move was seen in some circles as a signal of Trump's intents as various investigations move forward involving his associates. This threat could potentially be countered by state prosecutions of individuals for similar if not identical crimes, Schneiderman said. He pointed out that the constitutional prohibition on double jeopardy was found by the U.S. Supreme Court not to restrict successive prosecutions, whether by a state authority after the feds, or vice versa. However, according to the attorney general, New York's 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." According to Schneiderman's research on the issue, Article 40 of the state's criminal law states that certain pretrial actions—the swearing in of a jury, or a guilty plea—trigger the barring of state prosecution of the same crimes, absent an exception. That can occur, according to Schneiderman, when courts step in, either in the case of an appeal or an overturning of a federal conviction under certain circumstances. No parallel exception exists in New York for when a sitting U.S. president nullifies a federal criminal prosecution through the pardon power, Schneiderman's letter stated. Schneiderman says he feared a guilty plea or the swearing in of a federal jury could provide the president with the power to invoke the state statute to bar prosecution for the same 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 U.S. Constitution to pardon state crimes," Schneiderman said in his letter. In a statement that accompanied the letter, Schneiderman said that by closing the state double jeopardy loophole "lawmakers can ensure that no one accused of breaking New York’s laws will escape accountability merely because of a strategically-timed presidential pardon." "We are disturbed by reports that the President is considering pardons of individuals who may have committed serious federal financial, tax, and other crimes—acts that may also violate New York law," the attorney general said. "We must ensure that if the President, or any president, issues such pardons, we can use the full force of New York’s laws to bring such individuals to justice.” How Schneiderman's proposal will play out in Albany is uncertain. In a statement, Assembly Speaker Carl Heastie, D-Bronx, who heads the chamber's ample Democratic majority, said, "The Attorney General, who I have a great respect for, has raised this serious issue and we will take a close look at it." A person with knowledge of the early discussions on the Senate's Democratic caucus said there was support for the move. But, despite the unification of a breakaway group of Democratic senators with the mainline party earlier this month, control of the chamber still remains in limbo. A request for comment on the letter from a spokesman for the chamber's current majority leader, state Sen. John Flanagan, R-Suffolk, did not receive an immediate response. A spokeswoman for the Cuomo administration also did not respond to a request for comment.