There are two big reasons why Donald Trump would be embarking on a fool’s errand if he tried to fire Robert Mueller. One reason is political–it would cause a large portion of the nation to take to the streets. The other reason is legal. For the last year, New York state attorney general Eric Schneiderman has been conducting his own investigation of Trump, with the help of a full-time staff of prosecutors. If Mueller is pushed out, Schneiderman is poised to pick up right where Mueller would have left off.
Now Schneiderman wants to close off another potential escape route for Trump. He recently discovered that New York’s double jeopardy law would not allow someone to be prosecuted on state charges if he were pardoned for similar charges in federal court. Well aware of scuttlebutt that Trump is considering pardoning any aides convicted on federal charges lodged by Mueller, Schneiderman moved quickly.
On Wednesday, Schneiderman asked Governor Andrew Cuomo and the state legislature to give the state attorney general and local district attorneys the power to prosecute individuals in state court when they have been pardoned for similar crimes at the federal level. Read the letter Schneiderman sent here.
As most people who know anything about constitutional law know, the president does not have the power to pardon for state crimes. However, Schneiderman discovered that a Trump aide could potentially storm through a loophole in New York’s double jeopardy law–one of the most sweeping in the nation.
In New York, if a defendant pleads guilty to federal charges, or when a jury is impaneled, neither the attorney general nor a district attorney can bring a subsequent prosecution on equivalent state charges, unless certain exceptions apply. Schneiderman discovered that while state prosecutors can bring state charges against someone when a court throws out the federal proceeding, there is no exception “when the President effectively nullifies a federal criminal prosecution via pardon.”
Schneiderman believes that when the state legislature enacted the double jeopardy law, it could not possibly have intended to create a way for a president to effectively issue a pardon for a state-level crime. He doesn’t believe the legislature ever intended for this to happen. He wants a “narrow” exception to the double jeopardy rule that closes this loophole. He believes that such an exception would withstand a court challenge, given well-established precedent that presidential pardons have no standing regarding state charges.
This proposal isn’t as much of a slam dunk as it may seem. While New York has turned solid blue at the presidential level, the Republicans have clung to control of the state senate due to an apportionment that heavily over-represents upstate. However, after two feuding Democratic factions in the chamber reunited, the Republicans were only able to cling to control because one Democrat formally caucuses with them. If the Democrats can win special elections for two previously Democratic-held seats next week, they will regain control of the chamber.
Schneiderman is one state attorney general who has stared Trump down and won. For those who don’t know, he forced Trump to cough up $25 million to settle charges related to Trump University. He also led an investigation into Trump’s so-called foundation that all but forced it out of business. And now he wants to put Trump on notice that he’s wasting his time if he thinks he can pardon the likes of Paul Manafort, Michael Cohen, and others whose potential crimes may have also violated New York law.
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