State Senate, Assembly vote to close double- jeopardy ‘loophole’

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The New York State Senate, in a move aimed at opening criminal investigations into associates of President Donald Trump, voted on May 8 to close the so-called “double-jeopardy loophole.” Doing so would allow state prosecutors to bring charges against certain individuals who are pardoned of federal offenses.

The provision, which 24 states have already incorporated into their legal systems, was chiefly inspired by Trump’s vocal willingness to use his executive powers to pardon loyal associates and former employees convicted of federal crimes, according to State Sen. Todd Kaminsky, a Democrat from Long Beach, one of the bill’s chief architects.

The vote took on renewed urgency upon the release of the report last month by Special Counsel Robert Mueller, who had been tasked with investigating possible Russian interference in the 2016 presidential election, and which revealed new information about Trump’s plans to pardon those hit with indictments handed down from it.

“Special Counsel Robert Mueller’s report provided disturbing new evidence of the president’s plan to improperly use the pardon power to help his associates and undermine the rule of law,” Kaminsky, who before serving in the state Legislature, worked as federal prosecutor specializing in corruption, said in a statement. “ … No one — not even the president and his inner circle — is above the law.”

Six indictments emerged from Mueller’s investigation, which resulted in five convictions or guilty pleas, most of which stemmed from instances of lying to federal investigators. The report stopped short of recommending charges against Trump, instead passing the responsibility of what to do with the evidence his team had compiled off to Congress.

On Tuesday, the State Assembly passed its version of the bill. Assemblyman Charles Lavine, a Democrat from Glen Cove, told the Herald Gazette he voted in favor of the measure, but expressed his sincere regret in having to do so.

“It would’ve been inconceivable just years ago that any president would abuse the unrestricted power to pardon,” he said. “We have never seen a president utilize this for the purpose of protecting himself or for demagoguery.”

Lavine said the law would apply to anyone who’s in the president’s administration, has worked for any companies the president owns, has any controlling interests in those companies and affect anyone who’s worked on campaigns for the president. (see box)

“No longer will those people be immune for prosecution in our state courts for state crimes,” he said.

Attorney General Letitia James, New York’s chief prosecutor, released a statement upon the passage of the Senate bill, praising the measure.

“Our current ‘double-jeopardy’ law, while a well-intended and necessary law, could leave the state vulnerable in instances of abuse of the presidential pardon power,” she said. “Historically, this law has been used as a tool to safeguard and protect people against the abuse of governmental power, not as a tool to be exploited and to deny justice altogether.”

The bill creates an additional exception to the state’s double-jeopardy law, which is intended to prevent a “separate or subsequent prosecution” of an offense for which a person has been granted a presidential pardon.

According to the bill, it would create exceptions for people who have served in or been employed by the executive branch of the United States; those who have directly or indirectly worked in an election, transition or re-election campaign for an incoming or incumbent president; as well as and friends and family of the president — allowing them to be prosecuted in New York despite a pardon.

Gov. Andrew Cuomo has indicated that he would sign the measure into law should it pass the Assembly and issued a statement in August after the respective conviction and guilty pleas from ex-Trump campaign manager Paul Manafort and former lawyer Michael Cohen, saying as much.

“New York must have the ability to stand up against the abuse of power,” he said. “I call on the state Legislature to amend current state law to close the double-jeopardy loophole and ensure that these wrongdoers cannot escape justice — I will sign it into law the same day.”

Alyssa Seidman contributed to this story.