Bieler: We Must Hurt Trump; Ergo, We Must Hurt…

[Ed. Note: This is a guest post by my brilliant Fault Lines colleague, Sam Bieler.]

New York’s legislators are about to make a terrible mistake. They are going to repeal New York’s double jeopardy protections to stick it to Donald Trump. Maybe they will succeed. The price of their success will be imperiling every other criminal defendant in New York long after Trump is gone.

Led by newly-elected Attorney General Letitia James, New York legislators are returning to a scheme the previous AG spearheaded in April 2018, to modify New York’s double jeopardy law. That law, CPL § 40.20, states:

A person may not be twice prosecuted for the same offense.

If the plan brewing in Albany is anything like the last one, then legislators intend to blast a hole in the side of this protection by modifying CPL § 40.30 with a new subsection (a) to say, in effect, “no double jeopardy defense if you get a pardon.” Don’t worry, they’ve narrowed it this time around it so it only applies if you’re “connected” to the president, whatever the hell that will mean. This is a horrifically bad idea that will water down protections for criminal defendants both directly and indirectly.

CPL § 40.20 fixes, at least in New York, one of the great idiotic injustices of American criminal law: the “dual sovereigns” doctrine. Dual sovereigns is the idea that the federal government and state government are separate regimes with the right to separately enforce their own laws. This means that, in United States v. Lanza for example, a bootlegger could first be prosecuted under federal law for making and selling booze during Prohibition. Then Washington state could prosecute him for the exact same thing based on the exact same facts.

Doesn’t that mean that one is “subject for the same offense to be twice put in jeopardy of life or limb”? Doesn’t the Fifth Amendment have something to say about that? Nope. Dual sovereigns. Maybe there is some difference between being prosecuted by the feds or the states. Whatever it is though, it probably doesn’t feel very meaningful to people rotting in prison after the government gets a do-over or chance to pile on new charges.

For reasons I can only attribute to an occasionally merciful God, New York does not tolerate this nonsense. People v. Bokun has a good history of this – New York’s courts and legislators have been saying no to dual sovereignty since 1829. Bokun goes on to say that the doctrine is so firmly entrenched that only “a stated exception” by the legislature could support such a prosecution. AG James wants just this exception for pardons.

Presidential pardons have a unique, underappreciated place in our constitutional constellation. It is a power unique for being exclusively capable of reducing the oppressiveness of criminal law. The pardon power goes only in one direction – towards a less punitive system that puts fewer people in cages. Indeed, now that the Court has basically taken the Eighth Amendment out behind the woodshed with a .22, the pardon power stands virtually alone among constitutional safeguards against harsh penalties.

Now, the New York legislature wants to knock that down. For what? Another shot to prosecute Manafort? Seeing Kushner in prison? In a few years and a few election cycles, we will have forgotten all about them, but CPL §40.30(a) will still be there, ready for the day the president wants to show mercy and the governor doesn’t. Are you sure the governor of the state that gave the world Eliot Spitzer and Rudy Giuliani will use this power responsibly?

Even if the defense bar gets lucky (statistically, it has to happen at some point doesn’t it?) and only a few defendants are hurt by this change, the entire proposal taints how defendants’ rights are fought for and discussed. Look at how CPL § 40.20 is being described. It’s not a vital fix to a broken doctrine anymore, it’s a “loophole.” You know, just like those damn drug dealers getting off on “technicalities.” (It’s the Fourth Amendment. The technicality is the Fourth Amendment.)

This is how you end up with Philly DAs seizing and selling neighborhoods’ worth of houses or sex offender registry regime so brutal that juvenile offenders would literally rather kill themselves than live under it. One at a time, general defendant protections are eroded or criminal liability is broadened to prevent one-off, high-profile incidents. Left in the dark, these exceptions grow and metastasize until we’re left with the system we have today.

This is what AG James and the New York legislature are doing right now. CPL § 40.20 is not a loophole. It is not a procedural trick or an accidental flaw. It is a law expressly put into place to protect every New Yorker. It promises that, no matter what, the state does not get a do-over when it tries to strip you of your liberty.

Maybe you think the charges against Manafort and any future Trump prosecutions are justified. Maybe you think they are bullshit. But whatever you think about the merits of charges against these defendants, this change in the criminal law will weaken protections for all defendants, now and into the future. If this is the cost to pick off a few Trumpers, the price is too high.

30 thoughts on “Bieler: We Must Hurt Trump; Ergo, We Must Hurt…

  1. B. McLeod

    Well, of course the price can’t be “too high” for those who are determined to cut down every law to get at the devil they perceive Trump to be. Collateral casualties are acceptable. Sacrifices must be made. Can’t have an omelet without breaking eggs, etc.

  2. John Barleycorn

    So just to be clear, you also have an issue with this when it is done by the feds right?

    And you are also aware that most of the states do not currently have this “extra” protection against “double jeopardy” on their books. So in essence NY is reverting back to the norm here…even with the 5 years served is “enough” language.

    In other words I sincerely hope this is not a “Who’s Your King Baby?” and in fact you are perhaps even more concerned when the Feds are doing the “double jeopardy do” concerning the weakening protections for ALL defendants?

    P.S. Whos line, whos fault, fuck the King of any sovereign….and wasn’t that whole sovereign deal supposed to somehow or another be about the individual anyway?

    1. SHG Post author

      You might want to never begin a comment with “so just to be clear.” Branding matters. That’s Sam’s point, which you’ve studiously reduced to incoherence, that NY had historically given actual meaning to double jeopardy rather than hide behind the dual sovereigns fantasy, and they’re not giving away this historic protection for the sake of being as unprotective as the lowest common denominator.

      1. John Barleycorn

        True that esteemed one!

        AND who knew about NY having this little gem on the books before this morning?

        The boots from every direction and side of the aisle just want to stomp! Stomp, stomp, stomp…

        I just might have to seriously figure out how much it might cost me to convince Crayola Crayons to put out the Ultimate Voter’s 12-pack before the end-o-the-year.

        And just to be clear, I am pretty sure they would be up for it if the price is right, as long as I don’t bring my “Fisher Price -Laugh & Learn Count & Learn Bilingual Piggy Bank” along for the negotiations.

          1. John Barleycorn

            Just to be clear, I didn’t even know NY was still a State.

            Something or another about Manhattan becoming the first global sovereign, in order to save the world from itself, and economic enterprise zones, something, something, or another…

            Seriously, I thought Albany was on board with that and it was a done deal….

            Good for you guys from NY, I guess?

    2. Sam Bieler


      I have no earthly idea how you read this article as defense of federal use of the Dual Sovereigns doctrine – a theory I specifically denigrated and referred to as “nonsense.” If there is some line in this article that suggests I have sympathy for the Feds getting a do-over, do point it out. Otherwise, I am not clear why I would spend time on federal practice in a post specifically about state lawmakers doing state law things. This isn’t Medium – when I promise readers a point, I try to keep to it.

      I am equally unclear on why you think it is a relevant or compelling point that other states permit the Dual Sovereign doctrine. That other states chose to embrace this inanity is, if anything, more reason to celebrate New York holding the line for defendants and to decry any attempt to weaken those protections even as the “norm” is to embrace madness.


      1. SHG Post author

        Sam, meet JB. I like him a little, but would like him more if he gives me the Habeas Harley.
        But he’s occasionally a bit hard to comprehend.

      2. John Barleycorn

        Please accept my apologies Sam. I was just needling you…

        I like that “no earthly idea” line BTW! I am gonna steal it too…

        Don’t sue me bro!

        With all sincerity though, all of your efforts are noticed, respected, and appreciated by most of the subjects most of the time, and some of the subjects all of the time. Funk the King!

  3. Tom

    The Supreme Court heard arguments in December in Gamble v. US where the supreme court is reconsidering the separate sovereigns rule. The Supreme Court decision could moot any change in NY law if it abolishes the doctrine.

      1. John Barleycorn

        Too good to be true….or start popping any corks.

        I am just wondering how sheepishly the subjects will go back to their hovels when Ruth and Clarence get together on this one just to make things CLEAR about who is King.

        Yup you heard it here first…. Clarence is-a-gonna-yield on a gun case, because criminals and all not to mention the King.

  4. szr

    You wrote: “but whatever you think about the merits of charges against these defendants, this change in the criminal law will weaken protections for all defendants, now and into the future.” You’re absolutely right.

    According to the DOJ pardon statistics, about 40 people each year received pardons under former presidents Barack Obama and George W Bush. Setting aside clemency grants, many of those pardons were granted to persons with convictions that could be prosecuted at the state level. Darth Cheeto has pardoned 7 people so far.

    But to be fair, there is an upside. The proposed change gives a few fairly obscure politicians a chance to see their names in the newspaper.

    1. RedditLaw

      Darth Cheeto has been far too busy Making America Great Again to piddle about pardoning people. Also, it would cut into his time watching Fox and Friends in the morning.

    2. Donal

      I just looked at the DOJ pardon statistics and that is not true. Obama and George W Bush both granted 0 pardons the first 2 years of their terms- they only reach about 40 if you take their total pardons and divide them by year. So Trump has actually pardoned more people than they did by this time in their terms.

      1. szr

        Good point Donal. I didn’t notice the back-loading of clemency grants, but it makes sense politically. Perhaps Darth Cheeto will turn out to be less stingy with the pardon power than his predecessors.

        Regardless of how many pardons Darth Cheeto ultimately grants, Bieler’s point still stands—NY is poised to chop down a protection that benefits future petitioners. Future petitioners who have nothing to do with the current imbroglio, but will suffer anyway.

  5. Catherine P Clements

    I appreciate your commitment to putting the law ahead of politics. Thank you for being a voice of reason on this issue.

  6. RedditLaw

    Sam Bieler said:

    Don’t worry, they’ve narrowed it this time around it so it only applies if you’re “connected” to the president, whatever the hell that will mean.

    Dear Mr. Bieler:

    I tried to follow the link to the article in the above-quoted sentence, but that website requires a subscription to read the article. I even tried to open it in “private” browsing, but the firewall still stood. Could you please elaborate what “connection” to the President is required to fall under the supposed ambit of the proposed statute?

    If this relaxation of the New York double jeopardy provision only applies to friends of the Bad Orange Man, then how is this proposed law not a bill of attainder?

    May the wisdom of Reddit descend upon your Soul.



      1. Pedantic Grammar Police

        When linking to a paywalled article, the standard practice I’ve observed is to paraphrase the relevant part(s) of the article for the 98% of readers who do not pay for internet content.

        1. SHG Post author

          That’s a fascinating standard practice, and I particularly appreciate your telling me because there are few things that I value more than the standard practice you’ve observed to best serve the interest of the 98% of readers of sites other than SJ.

    1. Shadow of a Doubt

      I read the article (outline is a fantastic website for removing unnecessary ads, pictures and fluff from articles, the fact that it bypasses paywalls is entirely irrelevant to my recommendation of it). It’s non-specific about whether it targets only people associated with Trump or the presidency in general, I assume the legal and greater minds than myself can answer the question of whether it can be broad enough to target only Trump’s associates (which is still a terrible idea) and still pass muster without catching a bunch of other people up in it’s nonsense. Assuming it has to be with the presidency in general to get around the bill of attainder issue, it makes very pressing the concerns of our host. It’s not hard to imagine some kid being prosecuted twice because he cut the lawn for president 45, was arrested under 47 and pardoned by 48 and the DA’s office wants another crack.

  7. Hal

    “If I was governor, the oosik with be the state hard on.”

    Is that English? I recognize sev’l words, but can’t make sense of this and I consider myself nearly fluent in the language. Many have expressed admiration of my vocabularyness and conversability.

    1. B. McLeod

      He was responding to Barleycorn, and as near as I can tell, there is some sort of a code at work there. From the first, my limited cryptography has not been up to the challenge, and quite honestly, I have long since stopped even trying.

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