New York’s Double Jeopardy Law

Eric Schneiderman, New York’s Attorney General, sent a remarkable letter this afternoon to Gov. Andrew Cuomo and the state’s legislative leaders warning them that New York’s double jeopardy law could bar state prosecution of individuals granted federal pardons by President Trump. In the letter the Attorney General urges the legislature to close the “loophole” in state law.

According to Schneiderman, unique features of New York’s double jeopardy law mean that “a defendant pardoned by the President for a serious federal crime could be freed from all accountability under federal and state criminal law, even though the President has no authority under the U.S. Constitution to pardon state crimes.”

Here’s the key passage in the Attorney General’s letter:

“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—even if that person was never tried or convicted in federal court, and never served a single day in federal prison. The problem arises under Article 40 of the Criminal Procedure Law. Under that law, jeopardy attaches when a defendant pleads guilty, or, if the defendant proceeds to a jury trial, the moment the jury is sworn. . . . Thus, if a federal defendant pleads guilty to a federal crime, or if a jury is sworn in a federal criminal trial against that defendant, and then the President pardons that individual, this New York statute could be invoked to argue that a subsequent state prosecution is barred.”

The full letter is available here.  Here are the relevant New York statutes:

CPL §40.20 states that: “A person may not be twice prosecuted for the same offense.”

CPL §40.30 states that: “Except as otherwise provided in this section, a person ‘is prosecuted’ for an offense, within the meaning of section 40.20, when he is charged therewith by an accusatory instrument filed in a court of this state or of any jurisdiction within the United States, and when the action either:

(a) Terminates in a conviction upon a plea of guilty; or

(b) Proceeds to the trial stage and a jury has been impaneled and sworn or, in the case of a trial by the court without a jury, a witness is sworn.”

The precise requirements of New York’s law may explain why President Trump has not yet pardoned his former campaign manager Paul Manafort, despite the fact that the president's lawyer discussed pardons last year with attorneys for Manafort and former Trump National Security Adviser Michael Flynn.

Everything turns on the pardon’s timing. Double jeopardy only attaches in New York after the defendant pleads guilty or after the trial begins. Thus, if the president issued a preemptive pardon—e.g. before a jury is impaneled—Manafort would still be subject to prosecution in New York for state crimes.

Manafort is currently under investigation by both the New York Attorney General and the Manhattan DA’s office, which means New York’s double jeopardy law is of more than academic interest to him. 

Strategically, therefore, New York’s double jeopardy clause only works for the president if he waits until the federal trial begins, and then issues a pardon. That in turn means that Manafort will have to wait until virtually the last minute to find out if he is actually getting a presidential pardon. If such a scenario ultimately materializes, it will certainly make for a dramatic scene in the U.S. District Court on the trial’s opening day. 

But who knows. Nothing breaks new legal and constitutional ground like a presidential scandal. It seems that with every major presidential scandal—whether it be Teapot Dome in the 1920s, Watergate in the 1970s, Iran Contra in the 1980s, or Whitewater in the 1990s—investigators, defendants, and courts find themselves faced with a host of novel legal issues, and the results are often unpredictable. The Russia investigation is no different. How the courts will interpret all this is unclear as we remain in the early stages of the legal battle. But what does seem clear is that as the Russia investigation continues to unfold, we may hear a whole lot more in the months ahead about the intersection of state law and the federal pardon power.

Comments

[anon]

What if the president, on the way to the moon in a stolen rocket, dumped a big load of frozen human waste on a person already traumatized by hearing all of the Russian propaganda to which Americans are subjected on a daily basis?

Would the law of international space apply, or would we say that this is just another outrage that must be punished by non stop tongue lashing by Rachel Maddow, Anderson Cooper, and especially, Lawrence "the voice of reason and moderation" O'Donnell?

More importantly, what laws must we change, preemptively, to deprive this miscreant of the ability to use the existing law to his advantage? We should start with:

1. Repeal of the First Amendment, and immediate imprisonment of Fox News contributors (even the ones who support Democratic madness);

2. Repeal of the Second Amendment;

3. Repeal the Fourth Amendment, by using warrants in a secret court, yes, you better believe it, a SECRET COURT wherein only one side is heard, to spy on the dirty republican enemies under the pretense that one in their midst is a dirty Russian-lover;

4. Repeal of the Fifth Amendment for any dirty Republican (I've actually heard on MSNBC that the way to do this, as a practical matter, is to simply grant immunity);

5. Repeal of the Sixth Amendment (by seizing in surprise raids attorneys entire files, under the pretense that the "crime fraud" exemption applies if the client is a Republican);

6. Basically, create truth free zones, especially in academia, where partisans endlessly speculate, and make up straw persons to ruthlessly attack, sort as a parlor game to vent their ample stores of hate and anger.

[Y YPW]

My reading is that if the feds decline to prosecute, it never gets to the stage where the double jeopardy law kicks in. I'd be surprised if they haven't already thought of it, and why they're actively working with Mueller.

[Anthony Gaughan]

That's a great point, Y YPW. Thank you for your comment!