NY Pardon Law
The current administration has already flexed its muscles when it comes to Presidential pardons. President Trump has pardoned Sheriff Joe Arpaio and Lewis “Scooter” Libby and has Tweeted that he might posthumously pardon boxer Jack Johnson. He’s also been accused of hinting that he would pardon those individuals of his inner circle who are currently under federal investigation, including Michael Flynn and the recently arrested Michael Cohen, his personal lawyer.
New York is exploring the option to change the law and allow New York prosecutors to proceed with their case against anyone the president might pardon. New York Attorney General Eric Schneiderman has proposed a change in the state laws which would remove any protection via a pardon to those being prosecuted. The Supreme Court has held that the presidential pardon will not protect individuals from prosecution at the state level.
But many states, including New York, have their criminal law based on the 5th Amendment concerning double jeopardy. People cannot be prosecuted a second time for crimes that are related to the same act or conduct – even if the initial prosecution was brought for a federal, rather than a state offense.
Thus, the problem is that should Mr. Trump pardon a defendant for charges brought by federal special counsel, then New York prosecutors would be wholly unable to prosecute that person for similar charges in the state. A strategically timed pardon could, therefore, theoretically at least, prevent state-level prosecution after a presidential pardon. This is what is confounding prosecutors in the state.
There is some question as to the constitutionality of the proposal, but the double-jeopardy law in New York is not absolute – there are several exceptions to the rule. Arguably, this legislation would simply be adding one more exception, rather than a blank protection. This legislation comes on the heels of the arrest of Michael Cohen, for potentially violating campaign finance and banking laws. These state laws parallel laws of the federal government that Mr. Cohen is accused of violating. Therefore, if Mr. Trump pardons Mr. Cohen for a specific federal crime, the state of New York would be unable to prosecute him for that analogous state law. However, they could still proceed with related crimes.
It’s important to note that the A.G. is not currently prosecuting Mr. Cohen for anything. He is definitely working closely with the special counsel team and investigation of Mr. Trump. Some of the state crimes that Mr. Cohen might have committed are bank fraud (under New York Penal Law (NYPL) Article 190) and filing false statements in connection with any federal campaign finance violations (NYPL 210.45). If Mr. Cohen obstructed justice or defrauded the government, then NYPL 195.05 would apply. There are some claims that Cohen, who has significant financial connections to Ukraine, was engaged in a series of bribes. If so, he might be charged with violating New York bribery laws.
It’s still a major question if this proposal from the Attorney General will make it through the state legislature, which is fractious and fairly divided. Even if it fails, federal prosecutors are often clever enough to phrase their charges in a way that leaves the door open for state prosecutors to bring their own charges later.
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