UPDATE: On October 16, 2019, New York’s Governor Andrew Cuomo signed the bill into law. 

The New York state legislature has sent a bill to Governor Cuomo that would close New York’s presidential pardon loophole.

Background

New York state’s double jeopardy statute may currently allow certain defendants pardoned by the president for their federal crimes to also escape responsibility for their state crimes. For well over a century, the U.S. Supreme Court has held that the Constitution’s Double Jeopardy Clause does not prevent dual federal and state prosecution where a federal criminal statute and a state criminal statute both apply. But New York’s statute does prevent that, with certain exceptions. And if a president corruptly pardons one of his own family members, associates, or co-conspirators, then (under current New York state law), that person would also be immune from New York state prosecution.

The New York legislature has previously enacted twelve exceptions to the double jeopardy statute. The bill passed by the legislature (A.6653/S.4572) provides a new exception that narrowly targets self-dealing presidential pardons. This would ensure that state prosecutors could bring cases against certain defendants pardoned by the president for self-dealing purposes.

The bill provides that, in a small number of cases, state prosecutors can demonstrate to the court by clear and convincing evidence that one of five categories applies:

1. the defendant worked as a White House or top political appointee, or for the president’s campaign, transition, or business;
2. the defendant is the president’s relative;
3. the defendant was a co-conspirator with someone in the first two categories;
4. the president derived a legal benefit, such as avoiding his own prosecution, from the pardon; or
5. the defendant has material information about the liability of the president, his top aides, or his relatives. In those cases, state prosecution would be allowed notwithstanding the federal clemency.

Of course, the defendant would retain all other protections of New York law, and prosecutors would need to prove that the defendant committed the crime beyond a reasonable doubt.

For more background on the bill, see our op-ed with Prof. Laurence Tribe in the New York Daily News; our coalition letter to the legislature; and our legal memorandum on the bill’s constitutionality.

Current developments

The bill passed both houses of the New York legislature in May 2019, but was not delivered to the governor until October 11, 2019. That triggers a 30-day clock in which the governor can either sign the bill into law, veto it, or do nothing (a “pocket veto,” in which case it does not become law).

The bill, if signed into law, may apply to Lev Parnas and/or Igor Fruman, two pro-Trump donors and associates of the president’s personal lawyer, Rudy Giuliani, who were recently charged in federal court in New York with illegally funneling foreign money into U.S. elections. The bill applies to offenses committed before its date of passage, unless a guilty plea has been entered, a jury has been sworn in, or in the case of a non-jury trial, a witness has been sworn in.

If Governor Cuomo signs the bill into law, then a federal pardon of Parnas or Fruman from President Trump would not block state prosecution if they meet one of the five criteria in the bill. Based on what we know so far, it appears that Parnas and Fruman would not qualify for the first or second categories, but the third, fourth, or fifth may very well apply.

Relatedly, initial reports indicate that the president’s lawyer Rudy Giuliani is the subject of the same criminal investigation. A presidential pardon for federal crimes would likely not block state prosecution for corresponding state crimes, because Giuliani fits into the first category, and possibly the third, fourth, or fifth.

Next steps

Not for the first time, matters of national importance fall on the Empire State. The bill is a narrowly crafted solution that does not endanger broader statutory double jeopardy protections. Furthermore, the bill makes sense regardless of the political leanings of any particular president. We urge Governor Cuomo to sign A.6653/S.4572 and close this gap in the law.

UPDATE: On October 16, 2019, New York’s Governor Andrew Cuomo signed the bill into law.  

Photo: lev radin / Shutterstock.com