Schneiderman’s Pardon Play

Out of the blue, Trump pardoned Scooter Libby, which could only be explained as his way to send a message to his cohorts that they should keep their mouths shut and they too will be the beneficiaries of his largesse. Whether Libby deserved a pardon is irrelevant. It was clearly a message.

New York Attorney General Eric Schneiderman has a plan to thwart any Trump effort to use the pardon power to keep his minions silent.

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 Trump who have been pardoned, according to a letter Mr. Schneiderman sent to the governor and state lawmakers on Wednesday.

While the dual sovereignty exception to the Double Jeopardy Clause in the United States Constitution would otherwise allow the state to prosecute a defendant despite what happens with the feds, New York law has a peculiar twist to its double jeopardy regime.

Here’s the key provision: New York’s Criminal Procedure Law 40.20 states, “A person may not be twice prosecuted for the same offense.” The issue is that New York defines prosecution broadly. Section 40.30 notes that this applies to charges:

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 New York statute does not allow a state prosecution to follow a federal prosecution (“a court of any jurisdiction within the United States”) for the same core facts.

Historically, New York was proud of providing greater constitutional protections than the feds offered, but that was before Trump. Schneiderman doesn’t want to let that happen, and would rather burn down New York’s law than let someone like Michael Cohen be pardoned and walk away.

Simply put, 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 US Constitution to pardon state crimes.

The Legislature could not possibly have intended this result.

Or this was precisely what was intended, until the president was Trump. Schneiderman contends that the lege should move with all deliberate speed to amend CPL § 40.30 to include a new exception.

Any amendment should be narrow and ensure only that a state prosecution is not barred by a proceeding that the President annulled by issuing a pardon. The amendment could be modeled on existing provisions that enable subsequent prosecution when a prior proceeding is nullified by court order. My team and I are confident that well-crafted legislation to close New York’s double-jeopardy loophole would not only withstand constitutional scrutiny, but would advance the cause of justice and help preserve the rule of law.

Notably, the law is now a double jeopardy “loophole,” a word used to reflect that the law would work exactly as intended except that the outcome, this time, would not be acceptable.

While Cohen, et al., have not yet had jeopardy attach by plea or the start of trial, such that New York’s double jeopardy statute would kick in, any conduct in question has already been committed.  They obviously can’t go back in time and not engage in the conduct, so will the change in law now be ex post facto, another constitutional affront?

Putting aside the inherent problems with crafting or modifying laws to target specific hated individuals,* or the creation of an exception for individual defendants whose cases are nullified by presidential pardons which will still be there should the political winds shift, the ex post facto question is concerning.

If New York changes its rule, would the defendants be able to claim that the changes are retroactive ex post facto laws, changing criminal liability after the fact of the crime’s commission? Article I, Section 10 of the Constitution prohibits ex post facto laws, because they unfairly impose criminal liability without advance notice of criminality.

Fordham lawprof Jed Shugerman concludes it isn’t ex post facto.

In Collins v. Youngblood, the Supreme Court has held that the Constitution prohibits federal or state governments from depriving a defendant of a “defense” that had been available when the offense was committed. However, the definition of defense under the Ex Post Facto Clause is narrower than the colloquial understanding of the term. In order to violate the Ex Post Facto Clause, the defense that had been removed must relate to the legal definition of the offense or the punishment imposed for a violation, rather than a more formally procedural protection. A change to this New York statute would be a procedural change, not a change to substance or sentence.

This appears to be largely correct,** as C.J. Rehnquist wrote:

The Beazell formulation is faithful to our best knowledge of the original understanding of the Ex Post Facto Clause: Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts.

Eliminating the salutory effect of a pardon neither alters the definition of any offense nor increases the punishment for the offense itself. Sure, it may emit an unpleasant odor, being obviously directed toward assuring that specific individuals get their comeuppance and won’t manage to skate as a result of a pardon, but it won’t offend the Ex Post Facto Clause.

That said, there are a lot of moving parts to amending CPL § 40.30, and any change would have to pass muster under New York’s Constitution as well as the federal Constitution, meaning that the New York Court of Appeals could reject the limits of Collins v. Youngblood and apply its own more expansive definition. Whether that will alter the outcome remains to be seen.

*The Constitution also prohibits Bills of Attainder, laws punishing specific individuals. While there is a whiff of such purpose, this wouldn’t meet the test as it doesn’t punish, but rather allows the prosecution. The defendant could always be acquitted.

**The Court refused to make the distinction that calling a change in law procedural removed it from ex post facto review.

We think the best way to make sense out of this discussion in the cases is to say that by simply labeling a law “procedural,” a legislature does not thereby immunize it from scrutiny under the Ex Post Facto Clause. See Gibson v. Mississippi, 162 U. S. 565, 590 (1896). Subtle ex post facto violations are no more permissible than overt ones. In Beazell, supra, we said that the constitutional prohibition is addressed to laws, “whatever their form,” which make innocent acts criminal, alter the nature of the offense, or increase the punishment.

However, the Court rejected any notion that the inclusion of so-called procedural law changes would enlarge the scope of the Ex Post Facto Clause.

14 comments on “Schneiderman’s Pardon Play

  1. Jim Majkowski

    Some of your posts remind me of Paul Schofield bringing Robert Bolt’s prose to life.

      1. David

        Was it a compliment to the quality of your prose, or comparing your defence of legal rights to Thomas More arguing even the devil deserves the full protection of the laws (and why, of course!)?

  2. B. McLeod

    The reckless forces of the resistance will likely leave lasting scars on many laws and institutions, as they pull out all the stops to do anything and everything that might inconvenience Trump.

  3. Steve Tose

    Could Mueller threaten / be threatening to refer these potential prosecutions to the state, anticipating any feeling that they could rely on a pardon?

    1. SHG Post author

      By using the word “could,” you ask if it’s possible. Anything’s possible. It would be unlikely provided it’s within his mandate. If outside his mandate, then who knows?

      1. Steve Tose

        Thanks fof responding, when asking if he *could* be I intended it to read; is he likely to be, not is it possible, but I appreciate you answering both. It seems like if it were a movie he would anticipate the potential pardon of a potential presidential conspirator, but you imply it’s unlikely. I’d rather they all go free than tie the law in knots to get a conviction…

        1. SHG Post author

          The problem with trying to anticipate one-off situations is that they’re one-off. But like you, I hope there’s a little good law left standing after this administration, and they’re desperately trying to make the both of us very unhappy.

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