New York Solicitor General Barbara Underwood is outraged by Donald Trump's pardons, and she wants state legislators to do something about them before he strikes again. "First it was Sheriff Joe Arpaio," she says in a press release. "Then it was Scooter Libby. Now it's Dinesh D'Souza. We can't afford to wait to see who will be next. Lawmakers must act now to close New York's double jeopardy loophole and ensure that anyone who evades federal justice by virtue of a politically expedient pardon can be held accountable if they violate New York law."
That "double jeopardy loophole" requires some explaining. But first note that Underwood, a Democrat who detests Donald Trump, does not like it when he pardons famous Republicans, because she thinks he is "undermining the rule of law" by using his clemency power for political purposes. Since no president has ever done that before, it is presumably yet another way in which Trump has trampled on the standards and conventions that constrained his predecessors. Underwood's response to the president's patently political pardons is a completely nonpartisan reform that she hopes will enable her to stick it to any cronies he might pardon in the future, especially if they know things that could hurt him.
Contrary to what you might think, the "double jeopardy loophole" to which Underwood refers is not the clause of New York's constitution that says "no person shall be subject to be twice put in jeopardy for the same offense." Nor is it the similar clause in the Fifth Amendment to the U.S. Constitution, which says no person may "be subject for the same offense to be twice put in jeopardy of life or limb."
According to the New York Court of Appeals, the state constitution's ban on double jeopardy is no broader than the federal version, and the U.S. Supreme Court has said the Fifth Amendment does not preclude prosecuting the same person for the same actions in both state and federal courts. Although the underlying conduct may be identical, the Court says, the offenses are distinct because they are defined by "two sovereignties."
To their credit, New York legislators recognized that the dual sovereignty doctrine is a license for injustice, allowing a defendant to be punished twice for the same crime or tried again after an acquittal. They therefore enacted a law that says "a person may not be separately prosecuted for two offenses based upon the same act or criminal transaction." There are exceptions to that rule, but none of them covers objectionable pardons by Donald Trump. That is the "double jeopardy loophole" Underwood has in mind.
Underwood's press release links to an April 18 letter in which New York Attorney General Eric Schneiderman, a prominent Trump antagonist, lays out the case for closing this loophole:
The problem arises under Article 40 of the 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. 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. New York's law provides exceptions when a court nullifies a prior criminal proceeding (such as when an appeals court vacates a conviction), or even when a federal court overturns a federal conviction because the prosecution failed to establish an element of the crime that is not an element of the New York crime. But there is no parallel exception for when the President effectively nullifies a federal criminal prosecution via pardon.
Thus, if a federal defendant pleads guilty to a federal crime, or if a jury is sworn in a federal criminal trial against that defendant, and then the President pardons that individual, this New York statute could be invoked to argue that a subsequent state prosecution is barred. 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.
When he wrote that letter, Schneiderman was "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." According to the rumors, Trump had entertained the possibility of pardoning associates who might have damaging information about him. In view of that possibility, Schneiderman 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."
Allow me to elucidate Schneiderman's point with an example. Suppose Eric Schneiderman is charged with federal hate crimes for assaulting several people "because of" their gender. If Schneiderman is convicted in federal court but Trump pardons him (bear with me: this is just a hypothetical!), current New York law would bar a state prosecution for assault. Hence Schneiderman would 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."
To prevent such outrages, Underwood is backing a bill that redefines prosecuted under Article 40 to exclude cases where the defendant benefits from presidential clemency, unless the pardon or commutation occurs at least five years after conviction. That change is broader than necessary to address Underwood's avowed concern, since it would allow state prosecution of someone who was already convicted and punished under federal law if the president subsequently pardoned him.
Dinesh D'Souza, for instance, paid a $30,000 fine and spent his nights for eight months in a "community confinement center" after he pleaded guilty in 2014 to violating the legal limit on individual contributions to federal campaigns by reimbursing friends who gave money to a U.S. Senate candidate in New York. Even if you think the punishment was light, that was the judge's decision, not the president's. Yet if the exception Underwood wants had already been adopted, local or state prosecutors would have been free to pursue state charges against D'Souza in connection with his concealed campaign contributions, assuming they could fine a relevant New York statute.
It does seem like Underwood wants to punish D'Souza some more. "President Trump's latest pardon makes crystal clear his willingness to use his pardon power to thwart the cause of justice, rather than advance it," she says. "By pardoning Dinesh D'Souza, President Trump is undermining the rule of law by pardoning a political supporter who is an unapologetic convicted felon."
I'm no fan of D'Souza's, but it seems to me his offense, which involved funneling money to a college friend's campaign, was not that big a deal. There was nothing inherently criminal about it, and there are serious First Amendment objections to laws that restrict people's political advocacy by imposing abitrary caps on how much money they can give to candidates they like. Joe Arpaio, by contrast, defiantly abused the powers of his office and was never punished for it, since Trump pardoned him before he was sentenced. Since Arapaio was a sheriff in Arizona, of course, there is precious little that New York prosecutors could have done about that.
[This post has been revised to correct Underwood's title.]