MENU

Reason.com

Free Minds & Free Markets

New York's Attorney General Wants to Close the 'Double Jeopardy Loophole' So She Can Punish Pardoned Trump Cronies

Barbara Underwood is outraged by the president's use of his clemency power, and she wants state legislators to do something about it.

New York Attorney General's OfficeNew York Attorney General's OfficeNew York Attorney 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 12 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 her predecessor, 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.

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 Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Citizen X||

    lays out the case for closing this loophole:

    "Because we really, really want to."

  • ThomasD||

    Next: Who needs a Special Prosecutor when you can have Bills of Attainder!

  • Illocust||

    I'm surprised she has the balls to actually call it what it is. You'd think she'd go out of her way to avoid letting people know she wants to kill double jeopardy (even if in a smaller form).

    Also, damn, that is a surprisingly reasonable law. I wouldn't expect it from New York. I wonder how many other states have something similar.

  • BYODB||

    This is only an issue because of the bullshit underlying argument that you can be tried twice if it's illegal at the state and federal level. That's a bad decision in my view.

  • NotAnotherSkippy||

    And yet these same people think that the feds must give you a federal tax deduction for your state taxes. Because super justice fairness.

  • NotAnotherSkippy||

    I'm sure tomy reserved it already.

  • Fist of Etiquette||

    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.

    More likely they foresaw the possibility of such prosecutions used against those sketchy Empire State lawmakers themselves. It is, however, always good to be reminded that attorneys general are at the end of the day (and at the start of the day and every second in between) very partisan politicians.

  • KevinP||

    New York government is composed of gangsters.

    The dark cloud of intolerance is always descending upon Republicans but it always turns out to be composed of progressives and Democrats.

    NRA Sues New York for Punishing Financial Institutions Doing Business With Group


    Quotes (but read the whole article):
    The National Rifle Association on Friday sued the state of New York for fining and coercing financial institutions until they severed their connections to the gun-rights group.

    Governor Andrew Cuomo and the Department of Financial Services engaged in a "blacklisting campaign" against banks and insurance companies who did business with the NRA, infringing upon the group's constitutional right to "speak freely about gun-related issues and defend the Second Amendment,".

    The NRA presented an April letter from Maria Vullo, the DFS's superintendent, warning banks under her purview about the "reputational risk" of doing business with gun-rights groups. The state also pressured the companies behind the scenes.

    "Directed by Governor Cuomo, this campaign involves selective prosecution, backroom exhortations, and public threats with a singular goal—to deprive the NRA and its constituents of their First Amendment right to speak freely about gun-related issues and defend the Second Amendment," the complaint states.
  • Rich||

    So, loopholes are constructed by assholes?

  • Zeb||

    Yeah, the world is a much more dangerous place with a few geriatric political operatives out on the streets.

    Though I have to admit that part of me really wanted to see Sheriff Joe do some time. Fuck that guy.

  • Billy Bones||

    But only if he was made to wear a pink jump suit and had to live in a tent with 120F temps.

  • Brett Bellmore||

    But to really make the symmetry complete, you'd have to do it in Mexico. Does he ever enter Mexico at all, let alone illegally?

  • Rich||

    "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."

    Why not, Barbara? It might be *you*.

  • Unicorn Abattoir||

    But Bill Clinton's pardon of Marc Rich was totes OK.

  • epsilon given||

    I find it amusing that she failed to mention Blagoavich, a Democrat Trump also pardoned recently, and one which means he's getting out of prison early.

    Apparently she's fine with Governors literally selling Senate seat appointments, or she's fine with Democrats getting pardons, or something...

  • majil||

    That Attorney General makes Reno look like the last of the red mamas ! Hide the Cuban refugee children !

  • Leo Kovalensky II||

    Janet Reno & Elena Kagan had a baby = BU

  • Inigo Montoya||

    Hey! That's totally rac -- Oh, wait. Never mind, carry on.

  • Duke of url||

    I was going to say George Soros and Rachel Dratch.

  • Citizen X||

    The pumpkin pie haircut covers up the tiny arm growing out of the top of her head.

  • Entropy Drehmaschine Void||

    Human?

  • gormadoc||

    I forgot what she looked like and didn't need to remember.

  • ||

    Like a mix between Cechen Rebels and Lord Of The Rings.

  • I can't even||

    You just lost your television series!

  • Inigo Montoya||

    No, the trick is to not refer to non-human animals at all because that somehow relates to race.

    So, for example, "She looks like a cross between a bunny rabbit and a Barbie doll" = RACIST
    But "She looks like a cross between Grima Wormtongue and Emperor Palpatine" = OK

  • damikesc||

    Does she qualify as a feckless cunt?

  • BestUsedCarSales||

    She looks like that white haired old guy with a pained expression. He was from some stock photo site, and a lot of places love to use him in things.

    This guy

  • Chipper Morning Baculum||

  • Ska||

    If I ever need to publish a meme starring a blonde with big tits playing golf, I can go back to that link.

  • Chipper Morning Baculum||

  • lap83||

    Nah, too cute

  • Joe_JP||

    A concern with the latest pardon is that it is just a signal -- there is not much of an apparent desire to provide more criminal punishment for this guy personally. The concern is that it is a signal to others, including those under investigation or indictment for campaign violations, they will be taken care of. Now, you might not accept that concern as very valid and all, but let's at least focus on it, not some idea people want to indict DD in state court.

    As to the specific crime, an Republican amendment to a campaign finance law, the idea it is not "inherently criminal" doesn't convince me that it is not "serious" since many crimes not inherently criminal are serious while even being inherently criminal might not be [the hypo game can be played there -- robbery of a stick of gum or whatever].

    Even Scalia did not oppose disclosure laws and they are a basic means to avoid corruption. The practice here was in effect a means to get around that -- to get someone else to donate money for you. This is not some trivial thing. And, looking at coverage, I see that he even at first lied to the candidate about what he was doing.

  • NotAnotherSkippy||

    You mean like the signal to IRS employees that certain 501c3 orgs needed extra scrutiny? Or the signal that there wasn't a smidgen of corruption there? Or the signal that hillary obviously had no criminal intemt when she destroyed evidence and lied to the FBI?

    That kind of signal?

  • John||

    His crime was donating too much money to a candidate. There is no way you can support that consistent with support of free speech

  • Eidde||

    Disclosure laws are getting weaponized to target donors for harassment, so my prior enthusiasm for such laws is somewhat abating.

  • Eidde||

    My suggestion would be for supporters of a candidate to form a newspaper (a fine American tradition) and solicit anonymous donations - I'm not saying you won't be prosecuted, but you'd be able to showcase the repressive nature of these laws.

  • Brett Bellmore||

    Mine is almost totally abated. It's become just too clear that it's all about obtaining lists of people who dared to donate to the other (Republican) side, to destroy.

    There's already existing precedent to offer an exception to groups liable to be targeted for retribution. The courts just haven't yet accepted that, in large parts of the country, being discovered to not be a Democrat results in that sort of personal attack.

  • Bubba Jones||

    That seems like a reason to try them in NY instead of Federal court?

  • Ecoli||

    Trump should pardon Flynn, and any of Flynn's children who were being threatened by the FBI.

  • John||

    Remember no one needs to own a gun. Look how safe the U.K. is without a 2nd Amendment

    http://www.standard.co.uk/news.....52896.html

  • ||

    "Zombie-killer" is the official designation. It's a class of weapon traditionally used only by the military for dispatching the undead.

  • John||

    No one needs to own an assault zombie killer.

  • Aloysious||

    Finally; a news story wherein nobody is called a naughty word or ethnically slurred.

    Just two Englishmen disagreeing with each other.

  • Illocust||

    Holy shit, UK bastards are crazy.

  • ThomasD||

    Idiots too. Ten ounces of sharpened steel vs. 4000 lbs of motorized steel.

    The only way I'm 'blocked in' in that situation is when smashing my way out has proven ineffective.

    Assuming your car's engine is in the front, you put the car in reverse, back up until you make contact with the car behind. Get on the accelerator until you've shoved it back as far as it will go, then drop the car in drive and move. Bonus points if you turn Slash into a moist speed bump.

  • Illocust||

    I'm almost certain self-defense is illegal in the UK. Injuring the attacker while trying to escape will probably get you more jail time than him, and killing him....well, hope you like prison.

  • ThomasD||

    Hope you like getting stabbed in the back while trying to run away.

  • ThomasD||

    I guess there are ultimately two forms of libertarians.

    Those willing to suffer the consequences of thinking themselves free.

    And the masochists who want to suffer the victimhood of government.

  • Illocust||

    I'm not British dude. I'm a native born Texan. When my parents were gone for a week in my teen years, part of the keep the doors locked speech was handing me the revolver and telling me to keep it in my bedside table just in case.

  • Citizen X||

    Texas is the opposite of Britain. It is known.

  • Illocust||

    Texas has its problems with liberty in some areas it's true (everywhere does), but it's doing pretty good on self-defense and the second amendment.

  • damikesc||

    Any people that will forfeit rights for security deserve what they get.

    Especially since the police are, specifically, a reactive group. They are amazingly terrible at actually stopping a crime.

  • TxJack 112||

    I grew up in rural Texas. Calling sheriff might mean waiting possibly 45 minutes to an hour for them to arrive depending on where they were in the county when they got the call.

  • ||

    Injuring the attacker while trying to escape will probably get you more jail time than him, and killing him....well, hope you like prison.

    On the plus side, British (and actually several Nordic and European Nation's prisons) sound fairly nice. The guy that just killed to cops in Liege this week was a violent offender and out 'on leave'.

    Maybe that's the point, to get the hard working social dissidents off the streets and into the gulags but even then, if the country goes to shit, you're in some of the most secure and/or defensible housing outside of a military base.

  • ||

    OT, OT: A while back you posted up a link to a British "documentary" that attempted to fabricate black people into British history.

    The kids started watching Netflix's Who Was? series. It's narrated by H. Jon Benjamin and live acted and some of the choices are... edgy but possibly justifiable/sensible (King Tut is played by a black kid and Shakespeare is played by a girl).

    I was on the verge of shutting it off as Amelia Earhart (as portrayed by a white actress) is depicted as a child attending an air show with her black father. I could maybe understand the black father as a limited casting issue but the scene went on to depict explicit chauvinism/misogyny at this airshow (to the point of outright falsehood) as having inspired her to become a pilot.

    Before I could get to the remote, my 8 yr. old turned it off and then down voted it. The 10 yr. old thanked him. I asked why as the two older brothers have a tendency to downvote each other's or their other brother's shows out of spite. When he said, "I'm not even watching it and it feels like it's making me retarded." I almost shed a tear.

    On a lot of levels, the future looks downright terrifying for large swaths of the SJW movement. AFAICT, they're going to need some sort of coming to Jesus or second coming-type event to avoid getting chucked in a shallow grave at a young age.

  • Citizen X||

    It takes a special show indeed to even temporarily halt the rampant dickitry inherent in the brotherly relationship.

  • MasterThief||

    That's disappointing. I like H. John Benjamin and was intrigued to find something he had done that was off my radar. This sounds like a hard pass

  • damikesc||

    Hell, wasn't Earhart not even all that good a pilot?

  • Joe_JP||

    Beyond the above, the proposal might be too broad -- the basic idea is to make sure that a pardon isn't an unfair "get out of jail free" card. The text might be best tightened in the legislature. The concept seems reasonable enough.

  • iffickck||

    for something that is utterly and completely unconstitutional

  • NotAnotherSkippy||

    Joe likes his government big and intrusive. It's like a warm snuggy at the ballot box (and everywhere else).

  • Social Justice is neither||

    So apparently you think Hillary and the entiretly of the DNC money laundering/fundraising apparatus should go to both state and Federal prison for their violations of campaign contribution laws. good to know.

  • TxJack 112||

    Sorry, that is not a decision that is made by prosecutors. If the President pardons someone, they are absolved of the crime in all venues, not just federal courts. What she wants is to have Presidential pardons overridden by state laws for political reasons. That in itself is very scary.

  • John C. Randolph||

    What a feckless cunt.

    -jcr

  • NotAnotherSkippy||

    Folks, this can't happen. Just think, someday it might be used against a liberal, and we all know how problematic laws are.

  • Aloysious||

    Oh no! A hideous zombie!

  • Red Rocks White Privilege||

    Someone tell that useless bitch that Dolores Umbridge is not a character to be emulated.

  • Curly4||

    This shows the insane bias of New York Attorney General Barbara Underwood. Note also she did not mention any of Obama pardons so it is ok if those pardoniese did violate NY laws they will not be prosecuted and this new law passes. But just remember there is a future and if it is made into a law then the liberals will also have that law used on them also. But like so much that the democrats does that is future and they most likely will not be in office when the bill comes due therefore paying that bill will fall on some other dumb smuk.

  • damikesc||

    She is also unconcerned with the rampant violations of laws the Clinton Foundation undertook...in NY.

    Those virtues ain't gonna signal themselves.

  • Sometimes a Great Notion||

    Seems to me the problem is that only one jurisdiction should ever have authority to prosecute a crime and the federal government needs to get out of local law enforcement.

  • Unicorn Abattoir||

    Ladies and Gentlemen, I give you the next Preet, Barbara Underwood.

  • juris imprudent||

    Should she ever decide to post here, I'm afraid I would have to yield my handle to her. I am no match for her ability to conceive imprudent jurisprudence.

  • Rossami||

    The "two sovereignties" doctrine really should be overturned. While I understand the reasoning, I've always thought the Supreme Court got that one wrong. Kudos to the NY Legislature for shutting down at least some of the potential for abuse.

    As for power-grubbing partisan hacks like Underwood, you really have to wonder if they have any brains at all. They seem incapable of believing that the powers they grant to the government will ever be used by anyone but their own political clique.

  • Derp-o-Matic 6000||

    It's truly astounding that they continue to demand further and further expanses of unchecked power while simultaneously believing that the U.S. is a predominantly alt-right white supremacist society that recently elected LITERALLY HITLER as president.

  • Dixon Sider Woodchipper||

    I think they all know perfectly well that they're just making noise re: Trump and the alt-right BS. Bureaucrats are mostly leftists or hard leftists, so they're pretty safe.

  • Brett Bellmore||

    The basic problem with the doctrine is that, if the Constitution's limits on federal power were still in place, it would be practically impossible to commit an act that both state AND federal governments were allowed to penalize. The Constitution didn't set up overlapping sovereignty, on topics where the federal government is sovereign, states have no power, and visa versa.

  • Unicorn Abattoir||

    Good morning, AG Underwood. I see you've already met former AG Schneiderman...

  • Unicorn Abattoir||

    Good morning, AG Underwood. I see you've already met former AG Schneiderman...

  • juris imprudent||

    I'll take introductions in Hades for $200, Alex.

  • Citizen X||

    Worse. Albany.

  • Unicorn Abattoir||

    That's good too, but I was referring to Schneiderman resigning after smacking women around and Underwood...well, just look at her.

  • ThomasD||

    Is it just me, or does she looks like Pierre Salinger in drag?

  • BestUsedCarSales||

    I've always hated the word "loop hole" which as far as I can tell, means things that seem like they should be illegal but aren't.

  • ThomasD||

    "We didn't give you permission to do that."

  • Jerryskids||

    They should close the loophole in the law that makes it a crime to feed NY AG's into mulching machinery.

  • Derp-o-Matic 6000||

    Careful there. Preet is watching...

  • Unicorn Abattoir||

    I'm surprised they didn't give Preet the AG job.

  • Eidde||

    He's probably holding out for Senator.

  • loveconstitution1789||

    This chick wears underwear with dickholes in them.

  • Dillinger||

    it's not a boy named Barbara?

  • Get To Da Chippah||

    Since Arapaio was a sheriff in Arizona, of course, there is precious little that New York prosecutors could have done about that.

    Another loophole that needs to be fixed!!

    sin,
    Preet Underschneider

  • Derp-o-Matic 6000||

    Wait, is she the one currently under fire for seriously abusing her mistresses?

  • Brandybuck||

    Arpaio is a clown and a fool, and no why in hell do I have any sympathy for him whatsoever. But why this cunt thinks she can try him for Arizona crimes within the jurisdiction of New York is beyond insane.

  • Unicorn Abattoir||

    NY's jurisdiction includes all of the interior planets. This is known.

    Or she was just using him as an example.

  • Naaman Brown||

    Empire State politicians have been trying to impose the NY Sullivan Act on the rest of the country since at least 1924, state constitutional RKBA provisions be darnned in their view, because .... imperialism by the arrogant elite.

  • Tony||

    Trump's pardons though. Shady huh? Hello? It was bad when Clinton did it. There were ethics investigations and stuff. Still bad, right?

  • Eidde||

    Exactly the same. No relevant differences.

    The Congressional investigation of Clinton's pardons would only have been legitimate if designed to assess the need for a constitutional amendment. Since no amendment resulted, I suppose you accept that Clinton's evil enemies were unable to show any need to curb the pardon power?

  • Tony||

    I'm cool with it as-is. What's interesting to me is all the exciting new jurisprudence we're going to get as a result of Trump trying to blow up the investigation into himself and his associates. Such as can a pardon be an obstruction of justice?

  • Eidde||

    My first paragraph was /sarc, the second was not really.

  • Brett Bellmore||

    Personally, I'm rather happy about the fact that Trump is pardoning people this early in his presidency, instead of waiting until the day before he leaves office like most Presidents do. That's so chickenshit, issuing the pardons after the voters can't do anything to you.

    At least Trump is willing to own what he does.

  • Eidde||

  • Eidde||

    Reason has often relied on P. S. Ruckman's work.

    Which is fine, because his crime doesn't involve poor research.

  • Eidde||

  • Ecoli||

    So... Is Trump's pardon of Dinesh an implied threat to Mueller? Is it an implied promise to those pursued by Mueller?

  • Tony||

    I'm skeptical that Trump has the capacity to be tactical. Someone on FOX News probably whined about it.

  • damikesc||

    No, it is a correction of a wrong.

  • Brett Bellmore||

    Yup. It's not so much that D.D. didn't commit an illegal act, (Whether it should be illegal is another matter.) as that it's an illegal act that's virtually never prosecuted, and practically unheard of to require jail time for.

    It was just too obvious that he got the treatment he did because he produced a documentary that was uncomplimentary to the President.

  • TxJack 112||

    The only thing good about what this woman is saying is she is proving exactly why we have laws against double jeopardy. To prevent the malicious prosecution of people by the government. She wants lawmakers to allow the government to prosecute people when justice is not served according to her and other leftists. Double Jeopardy is a loophole? Seriously? This woman needs to be removed from office because she is not only insane, but dangerous. She literally wants to eliminate a fundamental protection from government abuse because of politics, period. That is very scary.

  • Hank Phillips||

    If she were Kim Kardashian level, someone might listen.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online