New York Democrats confront Trump presidential pardon power

ALBANY — With their new monopoly on power in the Legislature, Democrats have seized the opportunity to highlight their opposition to the Trump administration in several policy areas, including access to abortion, immigrant rights, gun control and election reform.

So far, however, they have not confronted the New Yorker in the White House on a more direct and personal level. But there are signs a confrontation may be near, particularly over the president's potential use of his pardon power. President Donald Trump's adversaries are hoping to use the levers they alone possess because the president is a New York resident and (presumably) a taxpayer, in the same way that the Southern District of New York has unique power to investigate the president's financial dealings.

“People have seen what two years of the Trump administration has meant to the country and to the state of New York, so I think folks are seeing that if there are things that we could do in here in New York, it’s all the more important that we lead,” said Assemblyman David Buchwald (D-White Plains).

In Albany, in addition to the possible challenge to pardons Trump may issue, proposals have been floated on subjects dealing with the disclosure of Trump’s taxes and even the appearance of his name on public property.

The federal government is barred from trying somebody twice for the same crime. But New York’s statute takes this further than is constitutionally necessary by saying state prosecutors can’t charge someone who has received a federal pardon with a related state crime.

New Attorney General Tish James made closing the so-called double jeopardy loophole a regular talking point on the campaign trail. She has been pressing lawmakers on the issue in recent weeks.

“I think we’re getting close,” said state Sen. Todd Kaminsky (D-Nassau), the bill’s sponsor and a former federal prosecutor. He said that James and the Assembly “are working out some language. ... It’s clear the bill is a priority, it’s something I’m confident we’re going to move this session, and we just want to do it so it’s not too over-broad.”

The legislation was initially proposed by former Attorney General Eric Schneiderman. While his career ended in disgrace mere weeks after the bill was introduced, the idea has continued to receive attention as the number of people with ties to the president who have been indicted — including several for crimes allegedly committed in New York — continues to tick up. Just two weeks ago, reports surfaced that Manhattan District Attorney Cy Vance Jr. has begun to draftstate charges against former Trump campaign manager Paul Manafort, but it could face a hurdle in the form of the current state law.

“The idea that really rankles New Yorkers is that somebody could subvert the rule of law and undermine their own investigation through a wanton use of the pardon power,” said Kaminsky. “If somebody had committed crimes that a grand jury in New York state believes violated New York law, the fact that we can’t act on that and we’re handcuffing ourselves is unjust, and that’s what this law gets at.”

Lawmakers are also continuing efforts to force Trump to release his taxes. The idea that states might be able to force the issue came about when Sen. Brad Hoylman (D-Manhattan) authored legislation that would prohibit presidential candidates who haven’t publicly disclosed their taxes from appearing on the ballot in New York.

Hoylman’s legislation has since been copied in dozens of states. While it has been approved by legislative chambers in California and New Jersey, the closest it’s come to passing in its state of origin came last June when Democrats used parliamentary maneuvers to force Republicans to move the bill from one committee that had no intention of supporting it into another committee that was even less likely to do so.

“I’m hopeful,” Hoylman said of the bill’s chances this year.

“We’ve got a lot of cosponsors … and that’s usually a good sign of support. And I think as we approach April 15, the rallying cry for Trump’s taxes will be even greater as it coincides, perhaps, with a report from the Mueller investigation and more information that’s required by Congress to conduct their investigation.”

Even if the Legislature passes that bill, however, there might be some hurdles. Former California Gov. Jerry Brown, not exactly a Trump defender, raised constitutional concerns about a state’s ability to keep a presidential candidate off the ballot when he vetoed a similar measure in 2017. There have been signs that Cuomo is of the same mindset — he recently authored a similar proposal, but his would only apply to candidates for state-level office.

And even if these laws were enacted and upheld by the courts, Trump could still simply refuse to disclose his taxes and suffer the consequences, figuring he would have no chance of winning electoral votes in places like California and New York anyway.

But there’s a possible workaround to this. When income taxes were first collected a century ago, returns were public information. The only reason they aren’t now is because of a subsequent law that says they aren’t.

Trump has presumably filed taxes in New York for every year of his adult life. In theory, there’s nothing stopping New York from amending the tax privacy law to say it doesn’t cover residents who serve as president and sharing his taxes with the world.

Buchwald, a tax attorney, has introduced legislation to that effect. Under a bill sponsored by him and Hoylman, the Department of Taxation and Finance would simply release five years’ worth of tax returns for top state officials and any New Yorkers serving as president or vice president.

“I’m a big believer that it’s the right thing for us to do as a state, to establish not just for him, but for our other statewide elected officials, that this is something we expect,” he said. “It’ll be one of my top priorities. And to Speaker [Carl] Heastie’s credit, there is a much broader commitment to a small-d democratic approach in the Assembly of allowing members to push for legislation when there’s strong support.”

There are also some examples of what Hoylman referred to as “more mundane” proposals that could be passed to directly challenge the president.

Consider the dilapidated Donald J. Trump State Park in Westchester and Putnam counties, which bears Trump's name because he made it a condition of his 2006 donation of land that he failed to turn into a golf course. Hoylman and Assemblywoman Nily Rozic (D-Queens) are sponsoring a bill that would rename it after Heather Heyer, the activist who was killed while protesting a white supremacist rally in Charlottesville, Va., in 2017.

Regardless of what happens to these particular bills, it’s a safe bet that the coming months will be filled with countless other measures that confront his agenda. Senate Majority Leader Andrea Stewart-Cousins has repeatedly declared that her new Democratic majority is dedicated to “opportunities … not walls,” and it’s likely that she’ll be able to use similar language again, with debates over everything from granting driver's licenses for undocumented immigrants to a state Equal Rights Amendment looming.

“If there’s anything we’ve learned from the past couple of years, it’s that the federal government and this administration really has it out for New Yorkers,” said Rozic. “It’s really incumbent on local and state governments to step up and lead and make sure that people aren’t getting left behind, and that we are passing legislation that speaks to New York’s values.”