NY Assembly Expected to Give Final Passage to Trump-Targeted 'Double Jeopardy' Bill

Dan M. Clark for NY Law Journal

Originally published in New York Law Journal

Democrats in New York plan to give final passage to a bill that would allow state prosecutors, including New York Attorney General Letitia James, to bring state charges against certain individuals who receive a federal pardon from President Donald Trump and his successors.

That’s currently not allowed under state law because of what Democrats call the “double jeopardy loophole,” a statute that prevents state prosecutors from using the same set of facts to charge a federally pardoned individual.

Legislation to change that part of the law was passed last week in the state Senate, where Democrats currently hold the majority for the first time in nearly a decade. Republicans blocked the bill last year when they were in the majority. They have labeled it as a largely political move with no real policy goal.

Democrats who control the state Assembly have now agreed to move the bill to the floor for a vote in the coming weeks after discussing it privately Monday evening. Members did not decide when they plan to move the bill, but it will have to wait until next week at the earliest. It’s currently in the Codes Committee, which isn’t scheduled to meet until next week.

Assembly Speaker Carl Heastie, D-Bronx, told reporters Tuesday afternoon that the vote would likely come next week after the bill moves out of the Codes Committee.

Assemblyman Joseph Lentol, D-Brooklyn, sponsors the bill in the chamber and said there was little objection to the legislation when members discussed it Monday evening.

“There were only about three members that asked questions and it went very quickly,” Lentol said. “There was only one member that objected to the bill this time, as opposed to last time when everybody seemed to be either against it or upset about the budget at the time.”

He was mostly joking about the last part. Democrats in the lower chamber expressed concerns about the legislation in March after a deal on the bill was announced between James and its sponsors. Members, at the time, declined to bring the bill to the floor for a vote immediately.

Their hesitation had to do with how targeted the bill was toward Trump, a development with a twist of irony. When the legislation was first introduced last year, members were concerned about how vague it was. That proposal would have allowed state prosecutors to bring charges against anyone pardoned by the president.

The new version of the bill was crafted more specifically to address those concerns. It’s now written in a way that would only allow state charges to be brought against a pardoned individual with direct ties to Trump, either through his family, their work on his campaign, or their work in the White House.

Lentol said members likely had a change of heart after speaking about the bill with James, who has been a strong supporter of the legislation. After Democrats came out against the proposal in March, James started making calls to explain the bill to them and win their support. Those efforts were successful, Lentol said.

“I think just having a detailed explanation to some of the members is what they wanted to hear,” Lentol said. “It’s not always cut and dry the way things happen.”

Lawmakers were quicker to coalesce around the legislation in the Senate, where it’s sponsored by Sen. Todd Kaminsky, D-Nassau. Kaminsky and Lentol have sponsored the bill and led the charge for its approval since it was first introduced last year.

The bill is expected to be approved by the Assembly in the coming weeks, after which it will head to Gov. Andrew Cuomo for approval. Cuomo has previously signaled his support for the proposal, urging lawmakers to pass it last August after former Trump campaign chairman Paul Manafort was convicted of charges related to financial fraud.

“A loophole in state law currently makes it impossible for New York to punish wrongdoers who receive a presidential pardon for federal crimes, no matter how suspicious or politically dubious the presidential pardon is,” Cuomo said. “This loophole must be closed to ensure that these politically motivated, self-serving actions are not sanctioned under law.”

James, who was the front-runner in the election for attorney general at the time, even went as far as calling on state lawmakers to return to Albany for a special session on the bill. That didn’t happen, but its sponsors reintroduced the measure immediately at the start of this year’s legislative session in January.

Kaminsky has said on more than one occasion that, while the legislation was inspired by Trump and the Mueller investigation in particular, the law would apply to any sitting president. More than 20 states have already enacted similar laws, according to Kaminsky.

“In the last few years, and especially of late, the rule of law has been threatened throughout our country, and threatened right here in the state of New York,” Kaminsky said. “New York is a sovereign entity, and if a law was broken here we should not tie the hands of our prosecutors and our citizens to seek redress for that and bring that before a grand jury.”

The bill is not retroactive, meaning that anyone who’s already either gone to trial or pleaded guilty on federal charges would not be eligible for scrutiny by state prosecutors based on the same set of facts. That’s because double jeopardy currently attaches when the first juror sits at trial or when a defendant enters into a guilty plea.

If approved by Cuomo, the legislation would take effect immediately but would not apply to those who’ve been charged and already either gone to trial or entered into a plea agreement.