Kaminsky: Close this loophole now: New York law will tie prosecutors' hands, and let Trump associates get off scot free, in the event of a presidential pardon

On June 4, President Trump tweeted, “As has been stated by numerous legal scholars, I have the absolute right to PARDON” — his caps, of course — “myself, but why would I do that when I have done nothing wrong?”

The idea that the President of the United States would muse aloud about exercising his constitutional powers to pardon himself is astonishing. But for Americans who have been observing Trump, the unthinkable has become routine. He has ignored the well-established Department of Justice process and doled out politically motivated pardons to a number of his supporters, including Arizona Sheriff Joe Arpaio, Vice President Dick Cheney’s Chief of Staff Scooter Libby and campaign finance felon Dinesh D’Souza.

It is crystal clear that Trump is willing to use his pardon power to thwart the cause of justice, rather than advance it — and that should trouble each and every American concerned with the rule of law.

The good news for the American public is that Trump’s constitutional power to grant clemency does not extend to state crimes. The President can try to use his pardon power to nullify, for example, prosecutions led by Special Counsel Robert Mueller, but he can’t stop prosecutions by state attorneys general or district attorneys.

The bad news is that, through an inadvertent loophole in New York law, Trump can use a strategically timed pardon to block a state prosecution. This is because New York law goes far beyond what is required by the U.S. Constitution, by generally prohibiting state prosecutors from trying a defendant “based on the same act or criminal transaction” as a prior federal prosecution — and therefore could unintentionally insulate someone pardoned by the President from subsequent prosecution for state crimes.

Our double jeopardy law is one of the broadest in the nation. That’s why, since April, we’ve been urging the state Legislature to take action to close this “presidential pardon” loophole.

The Assembly and Senate have already enacted 12 exceptions to it over the years — most recently in 2011 — to ensure that the law does not have the unintended consequence of allowing justice to go unserved and wrongdoing unpunished. It’s time to create a 13th exception, to close the double jeopardy pardon loophole.

A bill to do just that, introduced earlier this year by Assemblyman Joe Lentol and Sen. Kaminsky, has the support of legal experts, criminal justice advocates and editorial boards around the state; last week, Gov. Cuomo pledged to sign the bill if it passes.

The bill would not affect any pardon granted more than five years after a federal conviction and sentence. In fact, defendants are almost never granted presidential pardons within five years of conviction; President Obama’s clemency initiative, for example, granted clemency to over 1,600 federal drug offenders, with a focus on offenders who served 10 years or more in prison.

Rather, it would address the unintended and unjust consequences of insulating someone who receives a politically motivated pardon for serious federal crimes from 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 state Legislature adjourned for the session without taking up this bill. But in light of recent events, it’s more urgent than ever that the Legislature act. Both senators and Assembly members must come back now to ensure that Trump’s abuse of his pardon power does not allow anyone who has violated New York’s criminal laws to avoid facing justice in New York’s courts.