President Trump may have enjoyed flashing James Comey with his Scooter Libby pardon, but New York State Attorney General Eric Schneiderman is here to let the president know that he’s seen his pardon power, and he’s not impressed. Schneiderman just sent a letter to the governor and a group of legislators asking them to change New York state law so that if when Trump pardons Michael Cohen (et al.), there won’t be any procedural hang-ups to hinder a state prosecution of Cohen. This isn’t the first time the New York AG has positioned his state to pick up where others may leave off when it comes to the president and his inner circle; when talks have turned to presidential immunity or a Mueller firing, New York has promised to grab any slack. Now, New York is ready to change its own laws to ensure that presidential pardons will be meaningless in the Empire State.
Some brief background on what could happen, without Schneiderman’s proposed changes:
Under the U.S. Constitution, individuals are guaranteed the right to protection against double jeopardy. As we know from that Ashley Judd movie, this means a person can’t be tried twice for the same crime. However, “twice,” doesn’t really mean twice ever. It means no double prosecutions by the federal government – or as we say in lawyerspeak, “by the same sovereign.” Under the U.S. Constitution, it’s perfectly fine for a person to be prosecuted in state court following a federal prosecution for the same crime – because states have their own authority.
In just this way, our government is special because it allows for dual sovereignty – the concept that American citizens are simultaneously citizens of the country and of their respective states, and that states have weighty authority all their own. [Sidebar: this whole state/federal thing may seem familiar to you from every GOP campaign speech that hails the Tenth Amendment and “states’ rights” as the cornerstone of American law. That coincidence makes what’s going on here spectacularly poignant.]
States have their own state constitutions; some states – New York among them—guarantee their citizens even more protections against successive prosecution than the federal government did. That’s their right to do. States can provide more protections than the federal government does – they just can’t provide less. In New York, state law prohibits the prosecution of a person in state court when that person has already been prosecuted for that same act—even if the original prosecution was a federal one.
Without an amendment to the applicable law, this means that current New York law could function as follows:
- Federal prosecutors sift through the documents seized from Michael Cohen’s office and prosecute him for money laundering, election fraud, obstruction of justice, etc.
- Cohen wastes no time falling on his sword for his president, and pleads guilty to all the charges right after a jury is empaneled to hear the case against him.
- Trump issues an immediate pardon.
- Cohen is back smoking cigars on rooftops by close of business.
In such a scenario, New York State could not prosecute Cohen for the New York version of those same crimes he’d been charged with on the federal level; doing so would violate double jeopardy protections under New York law. That’s what Eric Schneiderman is looking to change.
Although this statutory amendment could have a serious impact on Michael Cohen and others banking on a Trump pardon, from a legislative standpoint, it’s not really all that radical. New York law already allows for some exceptions to the “no successive prosecution” rule – and Schneiderman is just asking for pardons to be added to the list of exceptions. Under current law, New York State is permitted to prosecute a defendant after a federal court vacates or overturns a conviction for the corresponding federal crime.
Treating a pardon the same way a vacated judgment would be is certainly reasonable from a criminal procedure perspective – and is important from a federalist one. Such an exception would guard against politically-motivated pardons that interfere with New York’s right to prosecute crimes committed within its borders. For Schneiderman, Cuomo, and the rest of the New York State Legislature, the chance to position their state to defend the realm against Michael Cohen is a political gem. President Trump has already shown a propensity to wield the federal pardon power with questionable if not disastrous judgment – some saying Trump “weaponized” the power when he used it to shield Joe Arpaio from obeying federal law. Tweaking New York law to checkmate Trump and take down Cohen in the process would is irresistible in its sheer reasonableness.
The Trump camp is likely to argue that Schneiderman’s request amounts to an unconstitutional Bill of Attainder – a law that targets specific individuals. They’ll be wrong, especially if New York gets this thing off the ground before Cohen is even indicted by the feds. Because the proposed change wouldn’t impose punishment, and would rather, simply allow for a prosecution with all the usual guarantees of procedural fairness, it just wouldn’t meet the criteria for Bills of Attainder. And it would be awfully hard to say it was specifically targeting Cohen if, at the time of its passage, Cohen hasn’t yet been pardoned. Still, expect to see questionable “experts” opine that New York has offended the U.S. Constitution.
Let’s not forget, too, that none of this prosecutorial two-step is even necessary if New York wanted to prosecute Cohen for a crime the feds haven’t charged. Speaking of things the feds haven’t charged, Robert Mueller and the U.S. Attorney’s Office for the Southern District are pretty smart; wouldn’t it be clever if they used their discretion to quarantine certain avenues of prosecution against Cohen? If federal prosecutors intentionally backed away from prosecuting some crimes to preserve those prosecutions for state prosecutors, that’d be a brilliant way to circumvent the power of an impending pardon. I mean that only works if the criminal defendant in question has committed such a smorgasbord of crimes that it’s practical for prosecutors to take what they want and leave the rest for others; file under “only in 2018.”
Former Assistant U.S. Attorney in Southern District of New York Daniel Goldman wondered yesterday:
Interesting for two reasons: 1) legally that the bar on successive prosecutions might apply in the event of a pardon and 2) factually – does @AGSchneiderman have an ongoing investigation into the President or his associates? https://t.co/kj6yUjqlDx
— Daniel S. Goldman (@danielsgoldman) April 18, 2018
Schneiderman is covering bases and planning for possibilities, the way lawyers do. He likely does have an investigation going against Trump, Cohen, and others. Plus, he’s not going to miss his chance to cash in on major political capital – and Governor Cuomo and others are likely to jump on board as well.
In the event New York opts not to change its law, the Cohen-pardon-successive- prosecution question may hinge on the limits Trump’s self-control. Under current law, New York’s protection against double jeopardy would only shield Cohen if he were pardoned after a jury was empaneled. That would require Trump to stand by through more investigation, discovery, and indictments – and to deal with whatever fallout they created.
9. So the question is whether, if he is inclined to pardon, he has the patience and foresight to wait until then (which could mean more searches, more interviews, and potentially more charges), or he gets too anxious and just pulls the trigger. Take your wagers.
— Asha Rangappa (@AshaRangappa_) April 18, 2018
Whether Donald Trump has the endurance – or as Hillary Clinton might say, the stamina — to hold back his pardon until it would be most potent is something about which we’ll just have to wonder.
This is an opinion piece. The views expressed in this article are those of just the author.