Can Presidential Pardons Subvert New York Law?

When Trump pardoned Scooter Libby, was he sending a message to his friends that they should keep their mouths shut and the will be beneficiaries as well?

Before Eric Schneiderman resigned, he dug into the New York law protecting citizens against Double Jeopardy and thwart Trump’s attempt to use the pardon power to keep his allies silent.

He was concerned that federal pardons, issued by the President, may permit state-level offenders to gain immunity from prosecution at the state level.

Although the Double Jeopardy Clause in the Constitution allows the state to prosecute a defendant, New York law has a strange twist to its double jeopardy safeguard.

Schneiderman assigned his staff to research the relevant state statutes and find evidence the Legislature intended the outcome.

Schneiderman’s calls to Albany were intended to drive home the ways a presidential pardon could protect the receiver against state-level prosecutors.

In his letter to state legislators and Governor Cuomo, Schneiderman expressed concern about a law which could prevent state prosecutors from pursuing serious violations of state criminal law following a presidential pardon.

Presidential Pardoning Power

Presidential pardoning powers, as it applies to federal crimes, is sweeping. America’s “founding fathers” argued in the Federalist Papers that the power to pardon was “benign” and would be used only by presidents who were “unscrupulous”. So far, they’ve been right. Since America was founded, few presidents have used it. When they have, it was largely to do justice instead of subverting it.

Recent news indicates the current President may be thinking about using pardons to impede criminal investigations. This is disturbing. Doing so would only continue to undermine public trust in the rule of law but a little-known feature of New York law might keep individuals in The Empire State from standing trial as well.

The Fifth Amendment

The US Constitution sees two levels of government: state and federal. Each comes with its own independent authority. While “crimes may be prosecuted at both levels, states possess primary authority for defining, and enforcing, criminal laws.”

The federal government enacts and enforces criminal laws which fall within the scope of Congress’s powers.

An important limitation on criminal prosecutions is the Double Jeopardy Clause of the Fifth Amendment. But is a person pardoned at the federal level automatically immune at the state level?

The 5th Amendment

The fifth amendment to the Constitution says no one can be subjected to trial twice for the same offense. The protection, based on common law, reflects the principle that the government should not be permitted numerous attempts to try an individual for the same crime. New York’s constitution contains similar protection. The state’s Court of Appeals has noted the Double Jeopardy Clauses in both the State and Federal Constitutions are almost identical in phrasing.

Under the American Supreme Court, a federal prosecution poses a bar under the Double Jeopardy Clause to a subsequent state prosecution — and vice versa according to former-Attorney General Schneiderman.

Unintended Consequences

New York’s statutory protections may result in the unintended consequence of insulating a person pardoned for serious federal crimes from follow-up prosecution for state crimes. The problem rises under Article 40 of the Criminal Procedure law. New York’s law provides exceptions when a court negates a previous criminal proceess, or even when a federal court overrules a federal decision as the prosecution failed to prove an element of the crime which is not an element of the New York crime.

The Takeaway

Schneiderman encouraged the state Legislature to take the same route and do it quick. He called for a narrow amendment which would ensure that only a state proceduroror is not barred by a presidential pardon, but the individual could avoid the double-jeopardy loophole as well.

So far there has been no indication of Schneiderman’s deputy, Solicitor General Barbara Underwood, willingness to pursue the matter.

Zephyr Teachout’s campaign to be New York’s next AG hasn’t revealed their plans for the sea-change if Teachout is elected.