An amended bill to close New York’s so-called “double jeopardy loophole” was formally introduced late Thursday after lawmakers came to an agreement earlier this week on the legislation, which will allow state prosecutors to bring charges against certain individuals pardoned of federal crimes.
The legislation would only allow state charges against pardoned individuals who worked for the president while they were in office; worked on their election for the presidency or on their transition team following an election; is a family member or directly related to a family member; or was an accessory to any of the aforementioned individuals in committing a crime.
It would also allow state prosecutors to bring charges against pardoned individuals whose alleged crimes were intended to benefit the president, or whose pardon helped the president to avoid a potential prosecution or conviction. They could also be charged by state prosecutors if they possess, or possessed, information that would aid a civil or criminal proceeding against the president who pardoned them, or someone directly connected to the president.
The bill, importantly, is not retrospective, meaning that it wouldn’t apply to individuals who have already been tried and convicted on federal charges. That’s because double jeopardy, a part of the Fifth Amendment of the U.S. Constitution that says individuals can’t face charges twice for the same crime, attaches when the jury is selected in a trial, not when a pardon is granted.
The proposed state law gets around that by invoking the concept of dual sovereignty to justify the option for state prosecutors to bring charges against the pardoned individual based on the same set of facts initially used by federal prosecutors, state Attorney General Letitia James said earlier this week in Albany.
But the change in state law wouldn’t apply to cases that have already had double jeopardy attached, meaning those individuals wouldn’t be eligible for state charges brought by either the New York Attorney General’s Office or a local district attorney identical to the federal charges they were pardoned of.
Paul Manafort Jr., who previously served temporarily as President Donald Trump’s campaign chairman in 2016, was sentenced earlier this week after being convicted last year of financial crimes alleged by Special Counsel Robert Mueller III. Manafort’s conviction—and the possibility of a presidential pardon, something Trump said he has not given consideration—is a case that can animate action to close the loophole.
Manhattan District Attorney Cyrus Vance’s office indicted Manafort in a separate action this week, but they specifically put together a case intended to avoid the double jeopardy conflict, reports said. The prosecution could, still, very well face a double jeopardy challenge going forward from Manafort’s attorneys.
The legislation, which was presented as a three-way deal between the state Senate, Assembly and James, was introduced by Assemblyman Joseph Lentol, D-Brooklyn, as a program bill on Thursday. That’s when the bill is introduced by a lawmaker at the request of either the attorney general or the governor.
James said earlier this week that the legislation is expected to be approved by lawmakers at some point over the next three weeks, though Lentol said the timing for passage hasn’t been set.
“I’m not sure where that lies,” Lentol said. “We conferenced it yesterday and it’s kind of up in the air at the moment.”
State Sen. Todd Kaminsky, D-Nassau, is expected to be the main sponsor of the legislation in the Senate, where he initially introduced the bill with Lentol last year. It was first proposed by former Attorney General Eric Schneiderman as a sort-of fail-safe for state prosecutors in the event that associates of Trump were charged, convicted and then pardoned.
Kaminsky, a former federal prosecutor, had urged his colleagues to take up the legislation last year, but Republicans who controlled the Senate were unwilling to consider it. It was reintroduced earlier this year, but hit an additional snag from Democrats who thought it was written too broadly. Kaminsky said earlier this week the bill was changed to address those concerns.
“Instead of it being about any crime that any random person [has] committed that has nothing to do with the president, this much more narrowly focuses on somebody in the president’s employment or family, really trying to flout the rule of law on the president’s behalf,” Kaminsky said. “I think it really gets at these issues, not just for this president but for any president.”
The legislation is expected to pass as a standalone bill separate from the state budget, which is due at the end of the month and is largely the focus of lawmakers in Albany this time of year.