April 19, 2019
I had to change the title of this to:
BREAKING: Trump doubles down on BREEDING CONCEPT Tweet following criticism.
Best Trump analogy of the day comes from Dana Milbank:
|This is a good article. Check the entire website for more.|
|ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL|
Governor Andrew M. Cuomo New York State Capitol Building Albany, NY 12224
Minority Leader Brian M. Kolb
New York State Assembly
Legislative Office Building, Room 933 Albany, NY 12248
Minority Leader Andrea Stewart-Cousins New York State Senate
Legislative Office Building, Room 907 Albany, NY 12247
April 18, 2018
Speaker Carl E. Heastie
New York State Assembly
Legislative Office Building, Room 932 Albany, NY 12248
Majority Leader John J. Flanagan New York State Senate
Room 330, State Capitol Building Albany, NY 12247
The President’s power to pardon federal crimes is sweeping and subject to limited review by the other branches of government. Our country’s founders argued this power was “benign”and would be used by presidents with “scrupulousness and caution.”i Thus far, they have generally been right. Since the Nation’s founding, presidents have used this power sparingly, largely to do justice, rather than subvert it.
Yet recent reports indicate that the President may be considering issuing pardons that may impede criminal investigations. This is disturbing news, not only because it would undermine public confidence in the rule of law, but also because—due to a little-known feature of New York law that appears to be unique in its reach—a strategically-timed pardon could prevent individuals who may have violated our State’s laws from standing trial in our courts as well. My staff has researched the relevant state statute and its legislative history, and can find no evidence that the Legislature intended this result. Therefore, I write to urge you to amend a law that may prevent state prosecutors from pursuing serious violations of state criminal law after a presidential pardon.
The federalist system enshrined in the U.S. Constitution envisions two levels of government, state and federal, each with independent authority.ii Although crimes may be prosecuted at both levels, “‘States possess primary authority for defining and enforcing’ criminal laws, including those prohibiting the gravest crimes.”iii The federal government may also, of course, enact and enforce criminal laws within the scope of Congress’s enumerated powers.iv
An important constitutional limitation on criminal prosecutions is the Double Jeopardy Clause of the Fifth Amendment, which states: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”v This protection, rooted in the common law, reflects an important principle that a government should not be permitted multiple attempts to try an individual for the same offense. Our State’s Constitution contains a similar protection, and the Court of Appeals recently noted that “[t]he Double Jeopardy Clauses in the State and Federal Constitutions are nearly identically worded, and we have never suggested that state constitutional double jeopardy protection differs from its federal counterpart.”vi
Under U.S. Supreme Court precedent, a federal prosecution poses no constitutional bar under the Double Jeopardy Clause to a subsequent state prosecution, and vice versa.vii This constitutional principle reflects the independent sovereign criminal law enforcement powers of the States and the Federal Government. “The States are separate sovereigns from the Federal Government.”viii
Although more than twenty states grant only the minimum double-jeopardy protection required by the Constitution, New York and several other states have added statutory protections that go beyond those requirements.ix These laws generally provide limited protections against successive prosecutions under state criminal law only where another jurisdiction (such as another State) already has prosecuted the defendant for identical criminal acts or offenses. As a longtime supporter of criminal justice reform, I am proud that New York has long been among the leaders in protecting criminal defendants from facing successive punishments for the same acts.x
Nevertheless, New York’s statutory protections could result in the unintended and unjust consequence of insulating someone pardoned for serious federal crimes from subsequent prosecution for state crimes—even if that person was never tried or convicted in federal court, and never served a single day in federal prison.
The problem arises under Article 40 of the Criminal Procedure Law. Under that law, jeopardy attaches when a defendant pleads guilty, or, if the defendant proceeds to a jury trial, the moment the jury is sworn.xi If any of those steps occur in a federal prosecution, then a subsequent prosecution for state crimes “based upon the same act or criminal transaction” cannotproceed, unless an exception applies.xii New York’s law provides exceptions when a courtnullifies a prior criminal proceeding (such as when an appeals court vacates a conviction),xiii or even when a federal court overturns a federal conviction because the prosecution failed to establish an element of the crime that is not an element of the New York crime.xiv But there is no parallel exception for when the President effectively nullifies a federal criminal prosecution via pardon.
The Legislature could not possibly have intended this result. The Court of Appeals hasnoted that the Legislature recognized “that the general rule barring subsequent prosecutions was too broad,” and so “added to the statute [several] exceptions in which a second prosecution is expressly permitted.”xvi And, after the First Department ruled that certain state tax charges against Leona Helmsley were barred because of a prior federal prosecution,xvii the Legislature amended the law to enable state tax fraud prosecutions notwithstanding a prior prosecution for a conspiracy to commit federal tax fraud.xviii The statute today has twelve exceptions.xix
The Legislature should take a similar route here, and do so quickly. 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. I stand ready to work with you to advance such legislation.
Thank you for your attention to this important matter.
Eric T. Schneiderman Attorney General
Read story here
This article came out before the 5:05 AM Tweet about Comey:
From the NY Times (email me if you can't read the entire article), The Forrest Gump President
By Jennifer Finney Boylan