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N.Y. Senate votes to close presidential pardon ‘loophole’

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President Donald Trump in 2016. Taking aim at his vocal willingness to use presidential pardon powers to aid loyal associates, lawmakers are seeking to allow state prosecutors to bring charges against certain individuals who have been federally pardoned.
President Donald Trump in 2016. Taking aim at his vocal willingness to use presidential pardon powers to aid loyal associates, lawmakers are seeking to allow state prosecutors to bring charges against certain individuals who have been federally pardoned.
Christina Daly/Herald

The New York State Senate, in a move aimed at opening criminal investigations into associates of President 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.

Twenty-four states have taken similar action, and the move was inspired chiefly 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, and one of the bill’s chief architects.

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

“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, was a 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 to Congress the responsibility for deciding what to do with the evidence Mueller’s team compiled.

With passage of the Senate bill, it now falls on the State Assembly to pass its version. Assemblywoman Judy Griffin, a Democrat from Rockville Centre who co-sponsored the bill, and whose district covers parts of Valley Stream and Franklin Square, said she expected it to be reviewed in conference early this week, after the Herald went to press.

The unprecedented nature of Trump’s presidency, Griffin said, warranted a rethinking of state laws to protect against wanton use of federal pardon power.

“Before we had the president that we have, we maybe didn’t realize how important things like these are,” she said of giving state prosecutors more latitude in their cases. “. . . It takes away that get-out-of-jail free card.”

Griffin said that state Attorney General Letitia James, New York’s chief prosecutor, favors the bill, and that the language in the Senate version indicates that at least in part, it came at her request.

James released a statement when the Senate bill passed, praising it. “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 would create 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.

The legislation would add 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 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 the president’s former lawyer, Michael Cohen, saying as much.

“New York must have the ability to stand up against the abuse of power,” Cuomo 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.”