Trump can't protect himself from New York prosecutors with a self-pardon, says the state senator who wrote the law to explicitly stop this from happening

Bill Bostock for Business Insider

December 12, 2020

Originally published in Business Insider on December 12, 2020.

President Donald Trump can't dodge New York prosecutors with a self-pardon, according to a state senator who wrote the law to stop things like this from happening.

In October 2019, Sen. Todd Kaminsky helped pass legislation to close New York state's double-jeopardy loophole, which had prevented prosecutors from bringing charges against those who had avoided similar charges at federal level due to a presidential pardon.

And, as the end of the the Trump presidency nears, the president is reportedly considering pardons for his family, his associates, and himself. Presidents can self-pardon, but it would only apply to federal offenses.

Trump and his family face numerous lawsuits after he leaves office, many of which are in New York.

  • Letitia James, the state's attorney general, is conducting an investigation into the Trump Organization's financial dealings.
  • Cyrus Vance Jr., the Manhattan district attorney, is investigating Trump and the Trump Organization on suspicion of bank and insurance fraud.

Legal experts have said that a self-pardon by Trump would be a corrupt move. The president has also been accused of using his pardoning power corruptly in the past. Three weeks ago, he pardoned his former national security advisor Michael Flynn, who in 2017 pleaded guilty to lying to the FBI.

Kaminsky, a former assistant US attorney in the Eastern District of New York, said closing the state's double-jeopardy loophole meant that prosecutors could now indict anyone who had pardoned by the president. All presidential pardons apply to federal cases.

"We knew that the president was corruptly using the pardon power," Kaminsky told Insider. "He did it in a number of instances. And the immediate question is, well, is there any way to seek justice in those cases?"

Kaminsky cited the much-criticized pardon of Sheriff Joe Arpaio in August 2017, which nullified Arpaio's conviction for violating a court order to stop racially profiling Latinos.

"We realised that New York didn't have that path to go down, almost because of a technical problem from the 1960s," he said. "We thought New York was too important to have one hand tied behind its back, or both hands tied behind its back."

New York State introduced its own double-jeopardy law in 1969 after a Supreme Court decision introduced the dual sovereignty of states and federal government, which permitted state prosecutors to pursue the same cases at a federal level. The double-jeopardy law effectively protected people who had been tried for similar charges at a federal level.

"A person may not be separately prosecuted for two offenses based upon the same act or criminal transaction," the law said.