Trump’s New Year: Could His Pardons Prove Futile In New York? A Q&A With State Sen. Todd Kaminsky, The Ex-Prosecutor Who Wrote Law To Close ‘Double Jeopardy’ Loophole

Richard Behar for Forbes

January 01, 2021

Originally published in Forbes on January 01, 2021.

Given his former career as a prosecutor who specialized in political corruption cases, it makes sense that Todd Kaminsky—sworn in as a New York state Democratic senator in 2016—would soon begin dissecting that state’s decades-old “double jeopardy” law. After all, in 2017 Trump pardoned Arizona sheriff Joe Arpaio, who was convicted of criminal contempt for disobeying a federal judge’s order to stop racial profiling. (The White House had called Arpaio a “worthy candidate” for clemency.) Moreover, by then the Mueller probe of Russian interference in the U.S. presidential election was heating up, which led Trump in 2018 to start tweeting about the prospect of pardoning himself.

What began troubling Kaminsky was that if Trump pardoned himself, as well as family members or friends, for crimes that were committed in New York—where his business is headquartered—a double jeopardy law on the state’s books since 1969 would have handcuffed local law enforcement from prosecuting those crimes themselves. So he wrote a law (co-sponsored with Joseph Lentol, an assembly member) that was enacted last year by the state’s legislature and signed by Governor Cuomo.

It turned out to be a prescient move, given the almost 50 pardons and commutations Trump has issued just in the last nine days, with perhaps plenty more to come. They include his longtime ally Roger Stone; his former campaign manager Paul Manafort; his former campaign aide George Papadopoulos; his senior adviser Jared Kushner’s father Charles; and three former Republican members of Congress. Trump’s former national security advisor, Michael Flynn, was pardoned in November.

Sen. Kaminsky’s legislation means that if Trump pardons himself or family members for any crimes committed while he ran the Trump Organization, they can still be prosecuted under the state’s new law. The Manhattan District Attorney is currently investigating Trump and the company on suspicion of bank and insurance fraud, while Trump’s son, Eric, is currently the subject of a probe by the state’s Attorney General. Investigators are also examining tax write-offs on millions of dollars in consulting fees, some of which appear to have gone to Ivanka Trump, according to the New York Times.

On December 18, Kaminsky penned a letter to the president, stating that he’d read in the news “that you are thinking about preemptively pardoning your lawyer Rudy Giuliani, your son-in-law Jared Kushner, and even your son Donald Trump, Jr., among others. I want to remind you that your pardon power only extends to federal offenses, and your friends and family could still face state prosecution... Let me tell you about how the law works in case you are not familiar...” He added: “I provide you this information as a courtesy. As a former state and federal prosecutor who oversaw corruption cases in New York, I can tell you that the State takes crimes against the public good very seriously.”

Kaminsky worked for six years as an assistant U.S. attorney in Brooklyn, after which he became acting deputy chief of the office’s public integrity section. He prosecuted several elected officials for corruption, including Pedro Espada (a state senate majority leader) and his son for crimes that included making false statements on tax returns, and embezzling millions from federally-funded, non-profit health clinics—money that went to cover his campaign costs and lavish lifestyle.

As a former prosecutor, what’s been your reaction to all the pardons that are coming out? Losing sleep? Or feeling good because you have the state law in place in case local investigators feel they need to use it?

“It's angering, but it's also really sad, because the truth is there are people out there that really deserve the opportunity for clemency who have suffered injustices. But that's not who the President is looking to help; he's looking to help people that are either in his orbit that he knows, or someone else for whom he thinks he could stick it to the institution that's targeted him. 

“And, you know, it’s just a real abuse of the pardon power. It undermines what the purpose of that power was supposed to be for, which is, as a matter of last resort, to correct injustices—not to settle scores, and not to undermine investigations that that may end up at his door. The fact that we even have to mention that is lunacy. But that's the times we're in right now.”

Purely as a hypothetical, can he pardon, say, 5,000 people before he leaves office on Jan 20th?

“Yes. There’s no limit to who, how many, when, or why. It has people talking about amending the Constitution to deal with his abuse of the pardon powers. That's now a serious conversation that people are having. We're all holding our breath for what the next three weeks will bring. And I don't think anyone believes that it's gonna get better. It's gonna get worse, unfortunately. Now the law that we passed allows New York to take action. There are some instances in which there's nothing New York will be able to do. But there may be some cases—especially involving the Trump family—where New York local prosecutors will be able to act and make sure that real justice is done going forward. And I think the tests will come soon.”

Are there any any pardons of his that you find particularly egregious?

“He has pardoned four people in the Manafort investigation out of the six who were convicted. And the two that he did not pardon were people who cooperated. And I think that's a really twisted message. It's the type of action that a crime boss would take. And what it's basically saying is, ‘If you want to not help the authorities’—this is the very government he's the head of—‘if you don't want to help the government, then you'll get taken care of. And if you want to tell the truth, you want to come forward, and you want to be brave and take a stand,’ he’ll smite you.

“As a former corruption prosecutor, the three congresspeople he's pardoned, I just feel really bad for the [FBI] agents, prosecutors and law enforcement officials who spent years making those cases. The person was guilty in every instance, in some cases, admitting it under oath. And then the president just pulls the rug out from under them and says, ‘Yeah, I like these guys, they were there for me, so I'm gonna give them a pardon.’ You know, for no good reason. So I just think that's a travesty. When you're an elected official, people place their trust in you, and you abuse that trust to game the system—that's a particularly egregious offense. And for the president to treat that like it's a parking ticket is disturbing.”

What are the origins of the law you wrote?

“We knew some of his early pardons, such as pardoning [sheriff] Arpaio, were suspect. And we knew that New York in the 1960s had really tied its hands behind its back by saying that a federal pardon equals a state pardon. Well, half the states had not opted to do that; New York did. I think we saw the writing on the wall, which is, ‘Hey, there could be state investigations, they may amount to nothing, they may amount to something. But shouldn't we give local prosecutors the opportunity to bring their cases to a grand jury and be able to uphold the rule of law?’

“In New York, we had to steer between two different rocky shoals: One are Republicans, who didn't want to do anything to hurt the president. And, on the other hand, the criminal justice movement is very big with a lot of energy in New York, and allowing for more prosecutions in a liberal state isn't exactly the order of the day.”

Certainly not here in New York.

“Albany’s tough, it's tough to get anything passed; especially a law that allows more prosecution is not really in vogue these days. Even though I'm a former federal prosecutor, it's much more of trying to figure out how to decarcerate and not have so many people in jail, and there's certainly an important agenda with respect to that. But the injustice of Trump helping out his friends, undermining the rule of law, and then New York sitting doing nothing about it, that really stuck in a lot of people's craws. So we were able to get the law passed. 

“But we were able to draw the law in a narrow way where the only cases—if the evidence is there—where New York can go after someone who's been [federally] pardoned, is if the pardon is connected to the president in some way. It's his family, it's his business, it's his campaign, it's somebody who has information about something he might have done. His use of the pardon powers has just been so flagrantly abusive in the last several weeks that it shows we need another layer in the justice system to backstop the federal one that he's undermining. So if you're the [state] Attorney General, if you're the Manhattan DA, if you're anyone who's got a case, there's no good reason why you shouldn't pursue it if the evidence justifies it. And we've given them that freedom.

“And look, this law applies not only to this president but to future presidents as well. We thought it was important for whoever comes in the future, from whatever party, that local prosecutors not have their hands artificially tied behind their backs, despite a federal pardon.”

Are other states following suit?

“A majority of states allow for state prosecutions, despite a federal pardon, but very few states happen to be at the intersection of business, Trump, his associates, his world, his family. So New York is just in a particularly interesting position to be able to take advantage of this new law that allows those cases to be brought. So I just think it's more of a situational thing than anything.”

Any thoughts on the Manafort pardon?

“The Paul Manafort case really lit a fire under us, because we knew right away because of the president's comments, and the way that case was going, that it was likely that Manafort would be ‘A: convicted’ and then ‘B: pardoned.’  But because the effort to get a law passed was very slow, we knew we had lost the opportunity for anyone to use our law in that instance—if he’d committed a state crime. We had missed the boat on Manafort.”

The pardon of Charles Kushner, Ivanka’s father-in-law, struck me as odd. Most people have no clue who he is. He’s long been out of jail. A pardon means that millions now know how egregious his crimes were [e.g. witness tampering, illegal campaign contributions, hiring a prostitute to seduce his brother-in-law.] I would imagine him saying to Trump, “Oh my God, don’t pardon me, please. Don’t draw attention to it.” And besides, everyone will know it was done only because he’s Jared’s father.

“One of the things you see as a prosecutor, and why so many cases end up in trial, is that it is extremely hard for people to admit they've done wrong—and even when they do, they do it begrudgingly, and don’t really believe in their heart that they are worse than anybody else. And obviously Mr. Kushner wanted this; no one foisted this [pardon] upon him. He wanted the sense that he was vindicated in his case.

“In a larger sense, this is The Trump Operation. If you know the president, if you help the president, you're on the list to be looked upon favorably for clemency. If you're a regular person who may have served your time, maybe was caught up in injustice, maybe had a bad moment that you need a reprieve for, because there's so much potential you have, you're not on that list. So it just shows that, you know, the president talked a lot about ‘the swamp’—there's a very swampy feel to the Kushner pardon.”

Any predictions for the outcome of Trump-related cases in New York? What does the new year hold?

“Look, I've seen no evidence other than what's reported publicly. And as a former prosecutor, sometimes what's in the press has nothing to do with reality. But what’s important about our law is this: whatever a prosecutor thinks is worth taking to a grand jury, whatever a grand jury thinks is worth indicting, whatever that office thinks is worth moving forward on, we wanted to give them the freedom to do that—to do what would happen in the course of any other case. A presidential pardon shouldn't get in the way of that. I don't know what the future holds. All we could do is allow the regular criminal justice process to run its course unobstructed.

“I think it's gonna be a really hectic three weeks, I think there are gonna be crazy pardons that no one could have anticipated. But if there's a prosecutor's office in the state of New York that has evidence that can move forward in cases connected to the president in some way, his pardons won't matter. And that certainly gives me comfort.”