New York legislators gave final passage Tuesday to a bill that would allow state prosecutors, including New York Attorney General Letitia James, to prosecute those who’ve been pardoned of federal crimes by President Donald Trump.
That’s currently not allowed in New York because of what Democrats who back the measure have called the “double jeopardy loophole,” a gap in state law that prevents state prosecutors from using the same set of facts to bring charges against a federally pardoned individual.
A bill to close that so-called loophole was approved Tuesday by the State Assembly after passing the State Senate earlier this month. The vote came down along party lines, with Democrats largely in favor of the legislation and Republicans in opposition.
James, who has pushed the bill in recent months, was in Albany on Tuesday for the vote. She sat in the Assembly chamber as lawmakers approved the measure, which she said she was “glad” to see passed.
“[The bill] ensures that the state of New York will retain its ability to seek justice in the event of abuse of the presidential pardon power,” James said. “If a crime is committed under New York law, we must have the ability to prosecute that crime. We must protect our sovereignty.”
Assemblyman Joseph Lentol, D-Brooklyn, sponsored the bill in the chamber and said the legislation is another way New York is moving to provide an extra layer of oversight over the federal government.
“Since there’s inaction in Washington to stop any of this power of the pardon being abused, or in any other way stopping the president from doing whatever he wants, it’s kind of ironic that the state has to step in and enforce the state’s rights to change the law so that we can check the power of the president,” Lentol said.
The measure will now be sent to the desk of Gov. Andrew Cuomo, who has previously signaled his support for the legislation.
The bill would not allow state prosecutors to bring charges against someone who’s already been convicted of, or pleaded guilty to, federal crimes by the time it becomes law. That’s because “double jeopardy” attaches when the first juror sits at a trial, or when someone enters into a plea agreement. The legislation wouldn’t rescind that event.
State Sen. Todd Kaminsky, D-Nassau, has sponsored the bill since it was first introduced last year. He said that, because the legislation is not retroactive, lawmakers should send it to Cuomo promptly for approval.
“I’ve said this all along, every day we wait to make this a law, we are potentially taking options off the table for our prosecutors to bring valid cases if the evidence warrants it,” Kaminsky said. “So I think we should move with great dispatch and get this done so that we have accountability in our state.”
As of now, James has not indicated that she has immediate plans to bring criminal charges against Trump or anyone in his inner circle. For the legislation to be relevant to such an investigation, those individuals would first have to face federal charges and be pardoned anyway.
The legislation has been a priority for James since she took office in January, and even before that when she was running to fill the post. She called on the state Legislature to hold a special session last year to pass the bill after former Trump campaign manager Paul Manafort was convicted on federal charges related to the probe of Special Counsel Robert Mueller III.
That was unlikely at the time because the State Senate was controlled by Republicans, who largely opposed the measure. Democrats took control of the chamber this year for the first time in nearly a decade, giving the legislation an easier path to becoming law.
“We know the president’s pardon power is sweeping, there’s no debate about that,” Kaminsky said. “But when we are confronted with a corrupt or capricious use of that power, New York does not have to stand idly by and let that be the case and refuse to pursue what it might believe to be crimes committed within its sovereign borders.”
James has been to Albany a handful of times since she took office to discuss the legislation with lawmakers, and is said to have made some personal appeals to Democrats who were cautious about the proposal. Lentol has attributed those discussions for bringing the legislation over the finish line.
It’s had mixed results in the chamber, where Democrats were opposed to a previous version of the bill introduced last year. That legislation would have allowed state prosecutors to bring charges against anyone pardoned of federal crimes. Some Democrats were worried the broad language of that proposal could backfire during future administrations.
The new version of the bill, announced in March, was crafted more specifically to address those concerns. 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.
But Democrats in the Assembly were initially slow to coalesce around that version of the bill as well. Lentol said previously there was consternation that the new version would appear targeted at Trump and his associates. That’s not necessarily untrue—the bill was inspired by Trump and the Mueller investigation—but Kaminsky and Lentol are quick to point out that the legislation will apply just as much to his successors as to Trump himself.
“The whole focus is going to be targeting Trump,” Lentol said. “This bill has nothing to do with Trump but everything to do with Trump, and everything to do with every other president who would choose to abuse their power of pardon.”
There was also discussion among members of the Assembly about the political consequences of passing the bill, particularly in swing districts. Democrats currently hold a firm majority in the chamber, but some members live in areas where their support for such a measure could cost them votes.
Those concerns were assuaged in recent weeks and put to bed after Democrats agreed in a private meeting last week to move the bill to the floor for a vote. Unlike their discussion in March, little was said about the bill before they agreed to back it.
Republicans were not silent as the bill was considered by the State Assembly on Tuesday. Assemblyman Andrew Goodell, R-Chautauqua, criticized his colleagues across the aisle for approving the legislation, calling it “political” and labeling it as unnecessary.
“Double jeopardy is a concept that was recognized by our Founding Fathers 230 years ago and it was recognized by the Legislature nearly 100 years ago,” Goodell said. “And we’re asked to set aside that fundamental concept of fairness and equity, not because we’re faced with any actual situation, but on a hypothetical situation.”
If Cuomo approves the bill, it will take effect immediately. The legislation isn’t retroactive, but it also wouldn’t apply to anyone who, when it becomes law, is already on trial but has not been convicted or has entered a guilty plea but has not been sentenced.