MANHATTAN (CN) – A peculiarity of New York law might prevent the state from taking action, Attorney General Eric Schneiderman warned Wednesday, if President Donald Trump pardoned those in his circle under criminal investigation.
“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 a statement as he fired off a 5-page letter to the state’s top legislator.
“By closing New York’s 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,” the attorney general continued.
With a reputation for throwing legal hurdles at the White House since the inauguration, Schneiderman issued the call to arms Wednesday in reaction to what he called reports that Trump “may be considering issuing pardons that may impede criminal investigations.”
“This is disturbing news, not only because it would undermine public confidence in the rule of law, but also because — due to a little-known feature of New York law that appears to be unique in its reach — a strategically-timed pardon could prevent individuals who may have violated our state’s laws from standing trial in our courts as well,” the letter states.
Under the separation of powers in the U.S. Constitution, state and federal prosecutors can target accused criminals separately for the same crimes without implicating constitutional protections against double jeopardy.
New York law contains additional protections, however, for criminal defendants that might find themselves within the crosshairs of the state and federal government.
Schneiderman made the statement one week into high-profile court proceedings involving embattled Trump attorney Michael Cohen, who has been the target of a months-long criminal investigation.
Amid speculation that Trump may pardon him, Schneiderman called for state legislators to rewrite Article 40 of Criminal Procedure Law.
“Under that law, jeopardy attaches when a defendant pleads guilty, or, if the defendant proceeds to a jury trial, the moment the jury is sworn,” the letter states. “If any of those steps occur in a federal prosecution, then a subsequent prosecution for state crimes ‘based upon the same act or criminal transaction’ cannot proceed, unless an exception applies.”
One of those exceptions came into focus during the case of former Goldman Sachs programmer Sergey Aleynikov, whom a federal jury convicted of stealing high-frequency trading software code from his employer.
Since the Second Circuit nullified Aleynikov’s convictions, Manhattan prosecutors had permission to pursue the case here, where a mixed verdict in a second trial left the programmer without additional jail time.
Manhattan prosecutors may not be so lucky with a federal defendant pardoned by Trump.
“There is no parallel exception for when the president effectively nullifies a federal criminal prosecution via pardon,” Schneiderman noted.
While the letter does not mention Cohen or any other Trump associate by name, Tor Ekeland attorney Mark Jaffe expressed concern for the long-term consequences of changing the law to address a particular investigation.
“I think that what Eric Schneiderman’s trying to do is very awkward because either he’s going to do something so general that other people besides the people intended to be targeted are going to be swept up into it, which would be unintended consequences and would help eviscerate what New York intended to be strong protections against double jeopardy,” Jaffe said in a phone interview on Wednesday. “Or, they are going to be so narrowly focused that they can only apply to a very limited amount of scenarios and a limited amount of people because they’re so much of a great desire to tailor things against Trump and his people.”
Regardless of one’s opinion of Trump, Jaffe added: “I’m just very reluctant to embrace a law or changes to the law because we want to specifically target people.”
Governor Andrew Cuomo’s office has not responded to an email seeking comment.