New York Attorney General Seeks Power to Bypass Presidential Pardons

Attorney General Eric T. Schneiderman of New York is moving to change New York state law so that he and other local prosecutors would have the power to bring criminal charges against aides to President Donald Trump who have been pardoned, according to a letter Schneiderman sent to the governor and state lawmakers on Wednesday.

The move, if approved by Gov. Andrew Cuomo and the Legislature, would serve notice that the legal troubles of the president and his aides may continue without the efforts of Robert Mueller, the special counsel investigating possible Russian interference in the 2016 presidential election.

Under the plan, Schneiderman, a Democrat, seeks to exempt New York’s double jeopardy law from cases involving presidential pardons, according to the letter, a copy of which was obtained by The New York Times. The current law and the concept of double jeopardy in general mean that a person cannot be tried for the same crime twice.

Right now, New York state law prevents people from being prosecuted more than once for crimes related to the same act, even if the original prosecution was in federal court. There are already a number of exceptions to the law, and the letter says that Schneiderman is proposing to add a new one that could be used if federal pardons are issued.

Trump and Schneiderman have a contentious past. Schneiderman led a three-year investigation of Trump University that resulted in a $25 million settlement. For his part, the president has dubbed Schneiderman “the nation’s worst AG.” He has also called him a “lightweight” and a “total loser,” and even tweeted that he wore eyeliner.

While Schneiderman’s jurisdiction does not encompass many of the areas being investigated by Mueller, a president has no authority to commute sentences or pardon offenses at the state level. That leaves convictions obtained by the state attorney general’s office or any other local prosecutor outside the president’s ability to intervene. The proposal would be structured so that it would not affect people who sought clemency after long jail sentences, an aide to Schneiderman said.

If the proposed law is passed, anyone indicted on state charges after being convicted in federal court and then pardoned would likely challenge the state law in court. But Schneiderman wrote in the letter that he and his advisers were confident the legislation would withstand any constitutional scrutiny.

Even though New York is a reliably blue state, Schneiderman’s proposal is hardly a foregone conclusion, given the narrow political divide in the state Senate.

“We are disturbed by reports that the president is considering pardons of individuals who may have committed serious federal financial, tax, and other crimes — acts that may also violate New York law,” Schneiderman said in a statement provided by his office.

“We must ensure that if the president, or any president, issues such pardons, we can use the full force of New York’s laws to bring such individuals to justice.”

The White House declined to comment.

The president has openly discussed his pardon powers, and reportedly even asked his aides whether he could pardon himself, though one of his lawyers denied it.

“While all agree the U.S. President has the complete power to pardon,” he tweeted last year, “why think of that when only crime so far is LEAKS against us.”

Just last week, when lawyers for Trump’s personal lawyer, Michael D. Cohen, who is himself the subject of a criminal investigation apparently unrelated to Mueller’s probe, were in court clashing with prosecutors over a search warrant, Trump pardoned former Vice President Dick Cheney’s chief of staff, I. Lewis Libby Jr.

Alan M. Dershowitz, a professor emeritus at Harvard Law School and a frequent Fox News commentator, said after reading Schneiderman’s letter that his proposal raises constitutional questions that cannot be answered without examining the legislation.

“The first is the specificity of the statute — of the exception — focusing on a limited number of people,” he said, noting that legislatures cannot make laws that apply to specific individuals. But he added that it was possible that such legislation, if properly drawn, would be constitutional.

Schneiderman’s move could set off a battle in the state Senate, where Republicans have narrowly controlled the chamber through alliances with Democrats. Earlier this month, though, most Democrats in the chamber ended a long-running feud, which has left a degree of doubt over long-term control of the body. An April 24 special election in Westchester County could determine who will lead the chamber.

The measure would likely be supported by Cuomo, who is tacking left in the face of a primary challenge from Cynthia Nixon, the actress and activist. The state’s Assembly has long been a bulwark of liberal ideals.

State Sen. Todd D. Kaminsky, D-Long Island, said in a statement that he would introduce a bill to “close the glaring loophole” highlighted by Schneiderman’s letter. Similar legislation will be introduced in the Assembly.

Schneiderman’s move is likely to inflame allies of Trump, who see Schneiderman as an opportunist bent on making political hay, and whom they see as unlikely to treat Trump fairly. This is hardly the first time Schneiderman has challenged Trump.

A month before the 2016 election, his office ordered Trump’s foundation to stop raising money in New York amid scrutiny over Trump’s claims about charitable giving. The $25 million settlement over Trump University came shortly after the election. Schneiderman called the settlement “a stunning reversal by Donald Trump and a major victory for the over 6,000 victims of his fraudulent university.”

The attorney general’s office has also investigated Trump’s former campaign chairman, Paul J. Manafort, who was indicted on federal charges last year, though he deferred his inquiry amid the federal investigation.

The Fifth Amendment of the U.S. Constitution has a double jeopardy clause that says “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” But that applies to multiple prosecutions of the same federal offense. The states are almost evenly split between those that have additional double jeopardy protections at the state level and those that do not. And Schneiderman has successfully backed changes to the double jeopardy law before. In 2011, the state closed what was known as the “Helmsley loophole,” named for the headline-grabbing hotelier Leona Helmsley, allowing it to prosecute tax cheats who had already been prosecuted federally.

“New York’s statutory protections could result in the unintended and unjust consequence of insulating someone pardoned for serious federal crimes from subsequent prosecution for state crimes,” Schneiderman writes in his letter, “even if that person was never tried or convicted in federal court, and never served a single day in federal prison.”

Whether Schneiderman’s office would even seek to become involved in a criminal prosecution of Trump or his aides remains to be seen. But his move only adds to Trump’s legal problems.

Several of Trump’s former aides have pleaded guilty in Mueller’s inquiry, including Rick Gates, a former campaign adviser, and Michael Flynn, Trump’s former national security adviser. Earlier this month, the Southern District of New York, an office of the Justice Department outside of Mueller’s, revealed it was investigating Cohen.

Trump has made his feelings about these investigations plain in a recent tweet that said, simply, “A TOTAL WITCH HUNT!!!”