Editorials of The Times

Don’t Let Trump Off the Hook

When American democracy is at stake, nothing can be left to chance.

That’s why New York legislators should quickly approve a proposal to let prosecutors pursue state charges against anyone pardoned by the president.

It might seem odd to be so urgent about something so arcane and even hypothetical. But President Donald Trump has raised fears that he could use his pardon power to shield associates under investigation as part of the special counsel inquiry into ties between his campaign and Russian hacking of the 2016 presidential election. That might not only let criminals escape justice, it could deprive the counsel, Robert Mueller, of leverage to get their testimony and learn about even greater wrongdoing.

Trump has raised the possibility of issuing pardons in general terms, and one of his lawyers spoke in 2017 with attorneys for two former aides about issuing them pardons. At the time, Mueller was investigating the aides, Paul Manafort and Michael Flynn. Manafort, a former Trump campaign chairman, was indicted on money laundering and other charges. Flynn pleaded guilty to lying to the FBI and is cooperating with investigators.

Trump has demonstrated that he is willing to use his pardoning power to stomach-churning effect. In August, he granted such a reprieve to a former Arizona sheriff, Joe Arpaio, who was convicted of criminal contempt after he defied an order from a federal judge to stop conducting traffic patrols that racially profiled immigrants.

Some of the federal crimes that Mueller appears to be pursuing could also entail the violation of New York laws, including tax evasion, bank fraud, cybercrimes and money laundering. The Fifth Amendment of the Constitution prohibits anyone from being charged twice for the same crime, but the Supreme Court has ruled that states can pursue charges that have been the subject of federal prosecution. New York is one of many states, though, that have laws strengthening protections against such double jeopardy. By guarding against overcriminalization, these laws serve a useful purpose.

Under the law now, prosecutors in New York cannot bring a similar or related case against someone after they plead guilty, or once a jury is sworn in at a federal trial.

The proposal pending in Albany would preserve the integrity of the double jeopardy statute, but carve out a narrow exception for anyone pardoned by the president.

The special prosecutor has charged 19 people with crimes, while several more people close to Trump are said to be under investigation but haven’t been charged.

Attorney General Eric Schneiderman championed the proposal, and his resignation this month shouldn’t stop lawmakers from enacting it. It has the backing of acting Attorney General Barbara Underwood. A spokeswoman for New York City Public Advocate Letitia James, the leading contender to replace Schneiderman, said James agrees with the concept but wants to study the specifics of the proposal before backing it.

In remarks this month, complaining about his imagined victimization by the Justice Department, the president said on Twitter that he would “have no choice but to use the powers granted to the Presidency and get involved!” It’s hard to know whether Trump meant that he was prepared to fire Mueller or Deputy Attorney General Rod Rosenstein, or to otherwise debase the separation of powers and the democracy he was elected to serve.

At this anxious moment, Albany lawmakers and the governor have an unusual opportunity to secure the rule of law by enacting the proposed change. Assembly Democrats, reflexively skeptical of any measures that increase prosecutorial powers in an unequal criminal justice system, were initially wary. But the proposal entails only a small change.

At least a small number of Republicans will have to be persuaded, since they have a razor-thin majority in the state Senate. Overall, the best way to make sure the amendment succeeds is to secure the backing of Gov. Andrew Cuomo, an expert Albany wrangler who could push this important measure over the finish line.

Appealing to the religious right, President Donald Trump is set to make good on his campaign promise to defund Planned Parenthood. In the process, he will put at risk women’s access not only to abortion but to birth control, Pap tests, sexually transmitted infection screenings and other health services.

Administration officials say they plan to put in place a version of the domestic gag rule, which would bar funding under the federal Title X family planning program for clinics that make abortion referrals or that provide abortions themselves. The rule could devastate groups like Planned Parenthood, preventing them from providing a range of reproductive health services and curtailing women’s constitutionally protected right to abortion.

During the 2016 campaign, even as Trump called for eliminating federal funding for Planned Parenthood because the organization provides abortions — a small fraction of its services, he then noted — he acknowledged what would be lost. “Millions and millions of women — cervical cancer, breast cancer — are helped by Planned Parenthood,” he said. “So you can say whatever you want, but they have millions of women going through Planned Parenthood that are helped greatly.”

The organization — an evil specter for social conservatives — has clinics that receive significant funding through the Title X program, which since 1971 has helped low-income women afford services like contraception and cancer screenings. Title X does not pay for abortions — federal funding for abortion is banned in a vast majority of cases in the United States — but women’s health clinics have long been able to provide both abortion care and family planning services in the same facility, as long as they keep those funding streams separate. One current requirement under Title X is that patients receive a referral for abortions, whether the abortion takes place at that facility or elsewhere. Clinics must also counsel patients about the procedure.

The Reagan administration rewrote those Title X regulations to create the gag rule, prohibiting other services from being provided in the same place as abortions, and banning abortion referrals and counseling. Planned Parenthood and other providers challenged the legality of the move; although the Supreme Court ultimately decided in 1991 that the rule changes were permissible, those changes never fully went into effect, and President Bill Clinton rescinded them when he came into office in 1993.

The Department of Health and Human Services under Trump will not bar or require abortion counseling. But its rule would come between patients and their doctors, denying crucial care. Overall, the Trump administration has kowtowed more fervently to religious conservatives than the Reagan administration. It has pushed ineffective, abstinence-only education while chipping away at access to contraception and giving hope to those who wish to see Roe v. Wade overturned. It has also imposed an expanded global gag rule preventing overseas clinics that receive U.S. health aid from providing or discussing abortion.

Women’s health advocates have fought back against these efforts. They filed a lawsuit early this month over other changes to the Title X program. But this will be a long and uphill battle against a president who appears not to know the difference between HIV and HPV — the human papillomavirus, a leading cause of cervical cancer.

His capitulation to the anti-abortion movement could deal a significant blow to women. They shouldn’t forget that betrayal.