(Roundup) Double Jeopardy: What is it, and why is New York Attorney General @AGSchneiderman trying to amend New York’s double jeopardy law?
Spoiler: To prevent Trump from pardoning himself, his family, his friends, and his associates.
nytimes.com/interactive/20…
Spoiler: To prevent Trump from pardoning himself, his family, his friends, and his associates.
nytimes.com/interactive/20…
1/ Remember that the presidential pardon power applies only to federal crimes, not state crimes.
Double Jeopardy is from the Fifth Amendment & prohibits a person from being prosecuted twice for the same crime. law.cornell.edu/wex/double_jeo…
Double Jeopardy is from the Fifth Amendment & prohibits a person from being prosecuted twice for the same crime. law.cornell.edu/wex/double_jeo…
2/ The United States Supreme Court has said that if a person's actions violate a federal law and a state law, double jeopardy does not mean they can't be brought to trial in both state and federal court because the two jurisdictions are independent.
3/ New York law, however, has a quirk. Under New York law, once criminal proceedings against a person are initiated in federal court, or a person pleads guilty in federal court, that person cannot be brought to trial in New York for any crimes arising from the same facts.
4/ So, for example, now that Flynn pleaded guilty in federal court, he can't be charged for a New York crime arising from the same facts--even if Trump pardons him.
This may explain why Mueller is charging very few crimes arising from narrow facts, even though it's obvious...
This may explain why Mueller is charging very few crimes arising from narrow facts, even though it's obvious...
5/ that more crimes have been committed. He's essentially preserving state crimes so that, if Trump begins issuing pardons, New York is not precluded from charging crimes arising from the same facts. He's circumventing Trump's pardon power. slate.com/articles/news_… …
6/ New York Attorney General Eric Schneiderman has hit on an easier way: Revise the New York statute so that if the president pardons a person for a federal crime, and the wrongful actions also violate a New York law, the crime can be prosecuted in New York.
8/ This would, for example, foil Trump’s ability to pardon Cohen, who evidently committed crimes that can be charged in New York.
Side note on pardons: It is highly unlikely that Trump would get away with issuing pardons for himself or co-conspirators.
Side note on pardons: It is highly unlikely that Trump would get away with issuing pardons for himself or co-conspirators.
9/ A presidential pardon of key co-conspirators or family etc. would be challenged in court, where the pardon would no doubt be held unconstitutional.
Amending the double jeopardy law is a neater solution, avoiding time-consuming court battle.
Amending the double jeopardy law is a neater solution, avoiding time-consuming court battle.
