Pardon Loophole Gets the Ax From New York Lawmakers

At the Capitol in Albany, N.Y., on May 8, 2019, the New York Senate considered legislation to authorize the release of individual New York state tax returns to Congress. (AP Photo/Tim Roske)

(CN) – Changing the law to ensure that no presidential pardon will undercut a state prosecution, the New York State Assembly approved a bill Tuesday to snip the so-called double-jeopardy loophole.

For nearly a century the U.S. Supreme Court has recognized that criminal defendants can face parallel state and federal charges for similar conduct, but New York has long had a more exacting standard of double-jeopardy protections.

That distinction got a face-lift Tuesday, with Democrats now controlling all three branches of New York’s government.

Sending the bill to Governor Andrew Cuomo’s desk this afternoon, the move follows speculation that strategic pardons could scuttle cases like New York’s recent indictment of Paul Manafort, the federally imprisoned former campaign chairman of President Donald Trump.

Lawmakers denied, however, that the bill was politically motivated.

“We never thought that we would have to be involved in a state review of presidential [pardon] power,” said Assemblyman Joseph Lentol, a Brooklyn Democrat.

“It has to do with presidential power period,” Lentol added.

Yet the lawmaker also affirmed that the loophole needed to be addressed in part because of Trump’s willingness to dangle pardons, as documented in Special Counsel Robert Mueller’s report on possible obstruction of justice by the president.

The fear that a pardon would castrate any New York prosecution of Trump cronies for crimes has been in the news since former state Attorney General Eric Schneiderman raised the issue last year.

“Long ago, the Supreme Court made clear that presidents cannot pardon for state crimes — now it’s time for New York law to do the same,” Schneiderman said in April 2018.

When the bill went before the state Senate earlier this month, Republicans found themselves in uncharacteristic alignment with the New York Civil Liberties Union, which has described the legislation as a short-sighted erosion of the rights of the accused.

Republican Assemblyman Andrew Goodell echoed that position today, saying the vote reversed a century of New York’s constitutional protections.

“We do not want to have the power of government repeatedly prosecuting someone for the same crime after they’ve been acquitted,” said Goodell, who represents Chautauqua County.  

“I think this is nothing more than a sharp poke, a poke in the eye, at this president,” he added.

Another Republican who found himself in alignment with the NYCLU today was Assemblyman Edward Ra. “It is a dangerous precedent to set, looking at it through that lens,” said Ra, who represents Nassau County.

Earlier this month, Democrats emphasized the narrowness of the bill, saying it was targeted to instances of presidents abusing pardon power to protect themselves, their family and their employees.

“From listening to a couple of my colleagues, they possibly don’t understand how limited this is,” Senator Liz Krueger of Manhattan said on May 8.

Governor Cuomo, a Democrat, is expected to sign the measure into law.

This is not the first time New York has amended its double-jeopardy protections to allow prosecutions in high profile cases.

Before the “double-jeopardy loophole,” New York State had what was known as the “Helmsley loophole,” named after the late billionaire Leona known by her credo “only little people pay taxes.”

Helmsley served a 19-month federal sentence and skated state prosecution by arguing double jeopardy. The New York Legislature patched its tax-evasion exemption in 2011.

“Our democracy survives because we have checks and balances,” Assemblyman Thomas Abinanti, a Westchester County Democrat, thundered today in explaining his affirmative vote. 

On Wednesday, the New York Assembly plans to vote on another bill drawing national headlines: legislation that would authorize the release of Trump’s tax returns to lawmakers’ federal counterparts.

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