President Donald Trump holding an Executive Grant of Clemency. (Photo: Susan Walsh/AP)

New York legislators are moving closer to a change in the state’s laws that would allow state prosecutors, including New York Attorney General Letitia James, to bring charges against individuals pardoned of federal crimes by President Donald Trump.

The State Senate approved a bill Wednesday to eliminate what’s called the “double jeopardy loophole,” which currently prevents state prosecutors in New York from bringing similar charges against someone who’s accepted a pardon from Trump .

The fate of the bill is now in the hands of the State Assembly, where lawmakers expect it to be discussed and likely brought to the floor for a vote sometime in the next few weeks. An exact timeline on when the lower house is planning to take the bill up is unclear.

State Sen. Todd Kaminsky, D-Nassau, said before the vote Wednesday that while the legislation was inspired last year by the possibility for Trump to pardon individuals, it’s also intended to give state prosecutors more power over individuals who break the law in New York. The bill was blocked from coming to the floor last year by Republicans who controlled the State Senate at the time.

“In the last few years, and especially of late, the rule of law has been threatened throughout our country, and threatened right here in the state of New York,” Kaminsky said. “New York is a sovereign entity, and if a law was broken here we should not tie the hands of our prosecutors and our citizens to seek redress for that and bring that before a grand jury.”

Democrats in the Senate coalesced around the bill after it was amended earlier this year in consultation with James and the Assembly. A previous version of the bill would have allowed anyone pardoned by the president, regardless of their relationship, to be brought up on state charges. Some viewed that proposal as too broad and worried it could backfire.

Lawmakers then announced an agreement with James in March to amend the bill to the version passed by the Senate on Wednesday. It’s now written in a way that would only allow state charges to be brought against a pardoned individual with direct ties to Trump, either through his family, their work on his campaign, or their work in the White House.

James applauded the Senate for passing the bill in a statement released Wednesday afternoon.

“This legislation upholds the standards of fairness and justice at the core of the ‘double jeopardy’ law,” James said. “It also embodies a central component to the foundation of our democracy: the president – unlike a monarch or authoritarian dictator – is not above the law and our laws should apply to all people of this nation equally, including and especially our leaders.”

The bill is not retroactive, meaning that anyone who’s already either gone to trial or pleaded guilty on federal charges would not be eligible for scrutiny by state prosecutors based on the same set of facts. That’s because double jeopardy currently attaches when the first juror sits at trial or when a defendant enters into a guilty plea.

But reports that Trump may consider pardoning individuals in the future—including some who have not faced federal charges—and has considered granting clemency in the past added urgency to the legislation in recent weeks, Kaminsky said.

“When you read the Mueller report and hear, don’t worry, you don’t have to cooperate you’ll be taken care of, that’s something that’s quite disturbing that has raised the issue of this loophole,” Kaminsky said. “When you hear someone say they’re considering pardoning somebody with a clear message of evading an investigation and evading what could come out of an investigation, it’s quite disturbing.”

The vote on the legislation was mainly along party lines in the Senate, which is controlled by Democrats this year for the first time in nearly a decade. Republicans in the chamber railed against the bill during the vote, calling it unconstitutional at times and criticizing their colleagues for moving what they viewed as a piece of legislation rooted largely in politics, rather than policy.

State Sen. Andrew Lanza, R-Staten Island, argued that the bill is a slippery slope to eliminating double jeopardy laws for any individual, rather than just those closely associated with the president.

“You may be aiming for the president, but there’s going to be a lot of collateral damage,” Lanza said. “Today it’s the president, tomorrow it’s the rest of us.”

Kaminsky was quick to clap back at Republicans, who have supported different legislation in the past intended to empower state prosecutors and other members of law enforcement.

“Today, it seems the world has flipped on its head,” Kaminsky said. “Instead of wanting to pursue accountability when someone has violated the law … today, suddenly so many don’t want to go down that track.”

The pressure is now on the Assembly, where Lentol said he has the votes to bring the bill to the floor after James convinced members to support the legislation. Members were concerned about how targeted the bill was toward Trump, but Lentol said Tuesday that James helped explain how the amended version addressed their concerns from last year.

“I think [James] has been around, doing her due diligence with many of the members, speaking to them about the bill, and talking to them about the bill and how it’s been drafted in a way to try to cure the objections from last year,” Lentol said. “My guess is that we have the votes to pass it and we’ll probably do it within the next couple of weeks.”

Lawmakers in the Assembly are expected to discuss the bill again in the coming weeks, at which time they will decide if, and when, to bring it to the floor for a vote. It’s possible they could seek to amend the bill a second time if Democrats still raise objections to the current version, but that’s not likely at this time.

If it passes the Assembly, the bill will then be sent to Gov. Andrew Cuomo for approval and become effective immediately if he signs it into law. Cuomo has previously signaled support for the proposal.

The Assembly has the next six weeks after Wednesday to approve the bill before they’re scheduled to leave Albany in June.


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