New York Legislators Approve Double Jeopardy for Trump Cronies to Protect 'the Rule of Law'

The bill allows dual prosecutions of people in the president's orbit who receive pardons or commutations.


Yesterday the New York State Assembly approved a bill that carves out an exception to the state's ban on dual prosecutions for people associated with the president who benefit from an act of clemency after being prosecuted for a federal crime. Senate Bill 4572, which the state Senate already has passed and Gov. Andrew Cuomo supports, does not mention Donald Trump by name, but it is aimed at making sure that his cronies can still be prosecuted under state law if he pardons them or commutes their sentences.

The high-minded rationale for S.B. 4572 is that a president should not be able to suppress damaging information that might emerge from state prosecution of former underlings by pardoning them for federal offenses that are also criminal under New York law. "Either in the past or in a continuing manner, the president has talked about using the pardon power in a corrupt way to undermine the rule of law," said the bill's Senate sponsor, Todd Kaminsky, a Democrat who represents part of Long Island. "I think New York doesn't have to sit by and let the capricious use of the pardon power tie its hands."

The low-minded rationale for Kaminsky's bill is that Democrats who detest Trump want to take advantage of any weapon they can find to hurt him and people associated with him, especially since impeachment seems to be off the table. But in their eagerness to attack their political opponents, the Democrats who control New York's legislature are compromising an important principle of justice.

The U.S. Supreme Court has long held that people can be prosecuted for the same conduct under both federal and state law, notwithstanding the constitutional ban on double jeopardy, because an act criminalized by "separate sovereigns" constitutes two distinct offenses. In a case the Court is considering right now, a man convicted of illegal gun possession under both state and federal law is asking the justices to revisit that dubious doctrine, which allows double punishment for the same crime and new prosecutions of defendants who have been acquitted. But 20 states, including New York, already have laws aimed at preventing such outcomes.

New York's law says "a person may not be twice prosecuted for the same offense" and "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 self-protecting pardons by Donald Trump. Hence the perceived need for S.B. 4572, which applies to former executive branch officials who served in positions requiring Senate confirmation, former members of the president's executive staff, and former employees of his campaign, transition team, businesses, or nonprofit organizations who benefit from his clemency after they are prosecuted for federal offenses.

In case those broad categories don't do the trick, the new exception also encompasses anyone who "bears accessory liability" for crimes committed by people associated with the president. There are also catchall categories for acts of clemency that help the president avoid "potential prosecution or conviction," that are related to crimes that benefited him, or that provide relief for a person who has information "material to the determination of any criminal or civil investigation, enforcement action or prosecution" involving the president.

If the goal of the law were limited to the one described by Kaminsky, you might think those last three categories would suffice. Why throw everyone connected to Trump under the bus if state prosecutions are allowed in cases where it can be shown that a pardon or commutation helped him avoid civil or criminal liability? The breadth of the new exception makes sense if it is a cudgel to beat Trump allies, less so if it is all about preventing him from "using the pardon power in a corrupt way to undermine the rule of law."

Consider former Trump campaign chairman Paul Manafort, who was sentenced to nearly eight years in federal prison for crimes unrelated to his work on the campaign. Manafort might or might not know things that would support civil or criminal action against the president. But under this bill, New York could prosecute him again for the same conduct (bank fraud, say) even without making that showing (since he is a former campaign official) if Trump decides to pardon him or commute his sentence. It would not matter if Trump's sole motivation was sympathy for someone he sincerely thought got a raw deal. New York prosecutors could still try to send Manafort back to prison.

The same would be true of many other people in Trump's orbit—including former secretaries, second cousins, and low-level campaign employees—who are convicted of federal offenses, even if the crime seems minor and the punishment disproportionate. Trump could still use his clemency power to help such a person, but that would not stop New York prosecutors from trying him again for the same conduct, assuming they can find a state law that applies.

If, say, Trump commuted the mandatory minimum sentence of a drug offender who once worked for one of his businesses, she would still be subject to state prosecution for the same crime. Meanwhile, a similarly situated defendant who committed the same offense but never made the mistake of working for Trump would not have to worry about a second prosecution. Call that distinction whatever you like, but it surely does not seem like upholding the rule of law.

[This post has been revised to correct the first name of New York's governor.]


NEXT: Beto O'Rourke Wants To Legalize Weed and Expunge Records, Too

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. But,……Orange Man Bad

    1. He should be really bad and deal with this by putting NY under martial law. Fuck those progtards.

  2. But this only applies to Trump “cronies”, per the article headline, so don’t worry too much about it. When the Bad Orange Man National Emergency Nightmare is over, politicians will never do anything like this again.

    1. Bills of attainder for the win!

    2. It doesn’t work as sarcasm is the Democrat rank and file actually BELIEVE it.

    1. Setting up for the Biden defense.

  3. Hopefully, the majority of folks who aren’t rabid Leftists will see this as yet another example of how the Democrats are going completely off the rails in their jihad against all things Trump.

    1. Democrats have been going completely off the rails since long before Trump. Trump just made it much more obvious.

      1. I cannot shake the feeling that somewhere in the upper echelons of the Democrat Party (crime syndicate), there is a plan encouraging excesses like this with the express purpose of damaging the radical arm of the Party.

        1. They aren’t that smart.

          1. Trump is playing them and it’s entertaining. It’s also leading to their demise!

  4. …annnnd the Deep State coup just keeps on rolling along. They really have no respect for the rule of law, do they.
    Hopefully one day these people will have to answer the courts themselves for what they are doing.

  5. The ap article I read on this acted like ending double jeopardy was something that could just be changed by changing the state law. No where in the entire article was their a mention of the US Constitution. Also it’s going to be really hilarious when the heat seeking missiles they are applying to Orange Man turn around on them. Journalism has gotten hilariously bad, they don’t even pretend anymore.

    1. As to the U.S. Constitution, it doesn’t prevent both state and federal prosecutions for the same offense. This is known as the Dual Sovereignty doctrine. Therefore, what is at issue here is N.Y. State’s law against double jeopardy — “A person may not be twice prosecuted for the same offense.”

      1. Actually, it does. The “Dual Sovereignty” doctrine is aconstitutional.

        Per the 10th amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

        This doesn’t leave any room for an overlap of jurisdiction. If something is a federal matter, it isn’t a state matter, and visa versa. For instance, if you commit murder in on a military base, it’s a federal matter, but not state, if you were to commit it outside the base, it’s a state matter, but not federal.

        This has become an issue only because of the abandonment of enumerated powers doctrine, allowing the federal government to exercise the general police authority it was deliberately not delegated.

        1. In my previous comment, replace “. This is known as” with “according to a doctrine known as” to better reflect history. The future of the doctrine should become clearer soon when Gamble v. United States is decided.

          Regardless, I like the 10th Amendment argument.

  6. Also, none of these people can comprehend the idea that this may come back to bite them in the ass one day.
    They are so invested in the idea of “The arc of the moral universe” swinging their way, that they can’t fathom a future where they don’t have control.

    1. “My moral arc swings wider than yours!”

    2. Fear not. The law will certainly be repealed if a (D) becomes president again.

      1. No, they’ll just not enforce it. They’ll want to hold it in reserve for the next Republican President.

    3. Such a strange way to put it.

      Who thinks the Democrats are in control?

      1. In New York? Are you serious?

    4. I suppose the irony here, too, is that you don’t seem to care about the centralization and aggrandizement of federal executive power over state-level criminal prosecutions because the president for now is a corrupt, incompetent fool who pwns the liberals. Is it that hard to imagine the shoe being on the other foot, in that respect – i.e., a Democratic president protecting his own aides from red-state prosecution the same way?

      1. When did red states decide to change their established laws simply to spite the President?

  7. In before all the Trumpistas bitching about Sullum this morning come read this article and have an aneurysm. Principles are such a pain in the ass.

    1. You enjoy being ignorant dont you?

    2. Care to elucidate what moral or legal “principle” was the basis for passing this law?

      Because it sure looks like a political hissy-fit by NY Democrats.

      1. Trump is the king of hissy-fits. Why can’t Democrats respond in kind?

        1. Because supposedly you’re superior to Trump? Thanks for showing how ugly bitter and unprincipled you actually are.

  8. And yet another reason to never, ever, go near New York.

    Had a vacation sales call this morning, inviting ‘a select group of travelers’ to get together in Manhattan. The poor script reader asked when I had last been to New York. I said “a couple decades ago, and I am never going back”.
    Turns out there wasn’t a page in the sales script for that one.

    1. And yet another reason to never, ever, go near New York.

      This would seem to be a “reason not to go near(?) New York” only if you were expecting to engage in activity that would be criminal under both NY state and federal law and thought you’d have a shot at a federal pardon from the president.

      If that’s on your agenda, then I’d wager New Yorkers are quite happy for you to stay far away.

      1. You’re right.

        You should avoid NYC because it’s an overrated and over-priced shithole.

  9. Hey, if double jeopardy worked in Stalin’ Soviet Union and Hitler’s Germany, it will work here.
    All it needs is a chance.
    Like John Lennon’s song said, “Give double jeopardy a chance…”

  10. “The low-minded rationale for Kaminsky’s bill is that Democrats who detest Trump want to take advantage of any weapon they can find to hurt him and people associated with him, especially since impeachment seems to be off the table. But in their eagerness to attack their political opponents, the Democrats who control New York’s legislature are compromising an important principle of justice.”

    They don’t care. He’s POTUS and that pathetic hag isn’t, and that’s all that matters.
    I wish TDS were fatal; the world would be better off.

    1. I wish TDS were fatal; the world would be better off.

      If they come to power again, it will be, just not to themselves.

      1. Just look at what happened anywhere leftists (=socialists, progressives, fascists) came to power: they destroy, they kill, they cause economic chaos and famine.

        1. Look at other countries where rightists are currently in power. Poland; Hungary; Turkey; Philippines; Egypt; Brazil; Russia.

          Models to follow, in your view?

          1. Lol, sure. Lovers of government are now the right. JFC dude.

            You love government. Worship it. Masturbate to it. As long as the leader has a “D” after his name, you have zero problem with authoritarian socialism. Quit pretending otherwise.

            1. You’re a fucking moron.

              1. Simon, you have Venezuela. I’ll take every single one of those “right wing” locals you mentioned over Venezuela.

                Funny, Obama promised increased flexibility with Putin after 2012. I guess Putin decided to become a conservative out of nowhere…

  11. Without the tool of threatening overprosecution, our criminal justice system would grind to a halt.

  12. Mario Cuomo may have a bridge named after him, but his son Andrew is governor.

  13. What could possibly go wrong?

    1. You’re right, there should be a clause that the law doesn’t apply to pardons granted by Democrats.

  14. I find it funny (not so much) that when about punishing people the “Supreme” considers the Federal and the State separate “sovereign”!

    1. You’re right. Two Kings rather than two servers. Other people really are hell.

  15. NYCCP is showing its KGB side. Strip a persons right of being charged twice for the same crime even if they are found innocent. Another law that will be shot down by SCOTUS !!!!

  16. Both parties are big spenders and grow the size of the government. They violate the civil liberties of the American people.

    But the democrats / left far outpace the republicans in crafting legislation specifically protect their own and punish their political foes. This is just a new example.

    Prior to Trump, they were already setting aside funds for illegal alien students and harassing fossil fuel and NRA affiliated companies. Black only spaces got some consideration at college campuses.

    With Trump in the white house they’re now on overdrive. They’re adding adversity scores to the SATs, setting up sanctuary cities and judges that allow KNOWN criminals to escape, wiping out right leaning voices on social media and openly rebelling against the electoral college. I’m sorry, but is there some constitutional amendment that allows states to opt out of the electoral college?

    These people make up their own standards. They do this all the time. They say a woman has total autonomy over her body to erase a human fetus, but if that woman chose not to purchase health insurance or put on makeup to appear “white” or culturally appropriate a fashion, they lose their minds.

    Who could forget the democrats letting Fairfax slide by reasoning “this kind of thing is best left to the police”. No kidding sherlock, say that to BK and the college kids dragged to campus kangaroo court. Jussie Smollett got off scot free by performing community service that never happened.

  17. They hate Trump, and lust for power, so much that they’re going to throw away constitutional principles:

    Constitution of the State of New York Art. I § 6:

    “No person shall be subject to be twice put in jeopardy for the same offense;”

    The left is getting more dangerous by the day. They’re actively seeking to destroy the First and Second Amendments, the Electoral College, they’re plotting to pack the Supreme Court, and now they’re trying to undermine the Fourth Amendment.

    All it will take is a Democratic President, a Reichstag Fire and we’ve lost our Democracy.

    1. Sigh…Obviously the Fifth Amendment, not the Fourth.

      “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

      1. Unfortunately, despite the Section in the Constitution that says; “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” somehow the Supremes have to declare which of the Bill of Rights, or even the entire document applies to the states.
        I guess the 5A hasn’t, yet.

        1. “I guess the 5A hasn’t, yet.”

          It has:
          Double Jeopardy – Benton v. Maryland, 395 U.S. 784 (1969)
          Self Incrimination – Malloy v. Hogan, 378 U.S. 1 (1964)
          Just Compensation – Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897)

          And of course:
          Due Process – Fourteenth Amendment, which both the Democrats and Republicans are violating with their Red Flag Laws.

  18. I don’t get it. The Democrats are using the rhetoric that they are protecting democracy and the rule of law from Trump. However, their actions seem to hold the vote and the law in contempt. If anything. Democratic actions are the ones that are threatening to replace democracy with an oligarchy.

    Finally, this is getting quite close to a writ of attainder. A law that specifically convicts one person. I think the Justices will look very harshly on that.

    1. What’s not to get? They don’t give a bucket of warm spit about democracy and the rule of law, they just want power. If rhetoric about democracy and the rule of law will get them power, they’ll spout it.

      1. Democrats got secure majorities in the NY legislature after they voted out obstructionist Republicans in the NY Senate, and are now pursuing legislation designed to achieve their ends.

        Yes, at least some of that is politically motivated, to provide for some kind of accountability, when it’s so hard to come by at the federal level. That seems to be what New York constituents want them to do. So, far from being contrary to the rule of law or democracy, it seems that New Yorkers are using the democratic process to hold their representatives accountable and to achieve their goals.

        Contrast this with Alabama, where a bunch of white men, gerrymandered into power, passed a near-total abortion ban that was plainly and unquestionably unconstitutional. It was a plainly political act that is intended to ultimately restrict the freedom of half this nation’s population. Is that “democracy” and “the rule of law” in action, in your view?

        1. If Alabama GOP already had the power to gerrymander, they already had a sufficient majority to do this abortion law. They were just as duly elected as any NY senators, and are pursuing legislation designed to achieve their ends.

          Perhaps because I think both groups are completely wrong in their actions, I can see the equivalence that you dismiss out of hand.

          1. The difference being, of course, that New York’s legislation is constitutional, whereas Alabama’s is not.

            1. Wait, you really think the NY legislation is constitutional?

              You’re even dumber than I thought then.

        2. And further, this NY law is in direct conflict with the NY constitution, which clearly says “No person shall be subject to be twice put in jeopardy for the same offense; ”

          Passing a law that conflicts DIRECTLY with your constitution is pretty much the definition of not caring about the rule of law.

          1. If the state constitution prohibits the state from prosecuting crimes that the federal government has pardoned, then clearly the statute in question serves no purpose, and its amendment is neither here nor there.


        3. “Contrast this with Alabama, where a bunch of white men, gerrymandered into power, passed a near-total abortion ban that was plainly and unquestionably unconstitutional.”

          ….based on a decision written solely by men…

          If men should have no say, Roe v Wade should be repealed, no?

        4. Got any proof they were gerrymandered in, sport? I mean, you know both parties gerrymander, right?

          Oh, and if men don’t get a say (not saying they should) then they shouldn’t bear any financial burden either.

  19. The irony here is rich. In any event this will obviously not pass legal challenge.

  20. Roper: So now you’d give the Devil benefit of law!
    More: Yes. What would you do? Cut a great road through the law to get after the Devil?
    Roper: I’d cut down every law in England to do that!
    More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast– man’s laws, not God’s– and if you cut them down—and you’re just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law for my own safety’s sake.

  21. So, what is the big deal??? The armed forces have been subject to double jeopardy since the late 1940s, when the UCMJ replaced the Articles of War!

  22. The Left is all about the politics of personal destruction. All their corruption always starts with the Law. Lawfare is the future.

    It’s increasingly impossible to live in peace and freedom with the Left. Fight back or be crushed.

    It’s doubtful the Right will ever summon the will to fight back.

  23. So, other states can justify harboring them then due to political persecution there.

  24. […] In order to stick it to President Trump and any associates he may pardon, New York legislature moves to chip away at what had been strong protections against double jeopardy. Not good [Sam Bieler via Scott Greenfield, Jacob Sullum] […]

Please to post comments

Comments are closed.