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Wed Apr 18, 2018, 03:45 PM

New York Attorney General Seeks Power to Bypass Presidential Pardons

Source: New York Times

Attorney General Eric T. Schneiderman of New York is moving to change New York state law so that he and other local prosecutors would have the power to bring criminal charges against aides to President Trump who have been pardoned, according to a letter Mr. Schneiderman sent to the governor and state lawmakers on Wednesday.

The move, if approved by Gov. Andrew M. Cuomo and the Legislature, would serve notice that the legal troubles of the president and his aides may continue without the efforts of Robert S. Mueller III, the special counsel investigating possible Russian interference in the 2016 presidential election.

Under the plan, Mr. Schneiderman, a Democrat, seeks to exempt New York’s double jeopardy law from cases involving presidential pardons, according to the letter, a copy of which was obtained by The New York Times. The current law and the concept of double jeopardy in general mean that a person cannot be tried for the same crime twice.

Right now, New York state law prevents people from being prosecuted more than once for crimes related to the same act, even if the original prosecution was in federal court. There are already a number of exceptions to the law, and the letter says that Mr. Schneiderman is proposing to add a new one that could be used if federal pardons are issued.

Read more: https://www.nytimes.com/2018/04/18/nyregion/schneiderman-trump-mueller-pardons.html

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Reply New York Attorney General Seeks Power to Bypass Presidential Pardons (Original post)
Native Apr 2018 OP
PoliticAverse Apr 2018 #1
pbmus Apr 2018 #2
meadowlander Apr 2018 #3
PoliticAverse Apr 2018 #5
Hortensis Apr 2018 #16
ananda Apr 2018 #12
sharedvalues Apr 2018 #17
meadowlark5 Apr 2018 #4
PoliticAverse Apr 2018 #7
wryter2000 Apr 2018 #9
Leghorn21 Apr 2018 #10
meadowlark5 Apr 2018 #11
lagomorph777 Apr 2018 #33
erronis Apr 2018 #6
YessirAtsaFact Apr 2018 #8
Native Apr 2018 #15
getagrip_already Apr 2018 #13
vi5 Apr 2018 #18
pnwmom Apr 2018 #19
Native Apr 2018 #14
OneBro Apr 2018 #20
PoliticAverse Apr 2018 #21
red dog 1 Apr 2018 #23
pecosbob Apr 2018 #22
red dog 1 Apr 2018 #24
mcar Apr 2018 #25
Nitram Apr 2018 #26
Mike Niendorff Apr 2018 #27
Native Apr 2018 #29
LiberalFighter Apr 2018 #28
Native Apr 2018 #30
Firestorm49 Apr 2018 #31
BobTheSubgenius Apr 2018 #32

Response to Native (Original post)

Wed Apr 18, 2018, 03:47 PM

1. Rec'd for exposure. n/t

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Response to Native (Original post)

Wed Apr 18, 2018, 03:47 PM

2. Jesus, I thought this was already ....Wtf....

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Response to pbmus (Reply #2)

Wed Apr 18, 2018, 03:51 PM

3. I think it's a timing thing but I'm not an expert.

At the moment, they can prosecute someone and if they convict, the president can't issue a pardon for the conviction.

But apparently what they don't have is the power to initiate a prosecution of someone who has already been pardoned by the president because of double jeopardy.

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Response to meadowlander (Reply #3)

Wed Apr 18, 2018, 03:53 PM

5. It's not "double jeopardy" (because of dual sovereignty) it's a specific New York State law....

as the article mentions.

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Response to PoliticAverse (Reply #5)

Wed Apr 18, 2018, 04:53 PM

16. Right.

Double jeopardy applies to within the SAME jurisdiction. If a Cohen action was a felony involving the jurisdictions of 7 states and that of the federal government, he could be tried in all 7 states and by the federal government.

If this was about a Democrat, the right'd love it since amending NY's law would increase NY state rights over the nation's chief executive.

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Response to pbmus (Reply #2)

Wed Apr 18, 2018, 04:34 PM

12. Me too! I thought it was already a thing.

Sheesh!

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Response to pbmus (Reply #2)

Wed Apr 18, 2018, 04:57 PM

17. It is a timing issue, heres how

Right now, in many states, there are no constraints on prosecution of state crimes that are also federal crimes. If a federal crime was committed that overlaps with a state crime, the subject can be prosecuted and punished in both jurisdictions.

But New York has a special law that says a subject cannot be prosecuted for a state crime IF prosecuted for a federal crime. The federal prosecution is defined to begin when a guilty plea is lodged, or when a jury is empaneled for a trial.

So under current law, here is what could happen. Manafort is charged with federal crimes. He goes to trial. Jury selection finishes and the trial begins. At that point, the president pardons him. Then the federal prosecution ends, and also a NY state prosecution is barred. If the pardon came down before the jury was seated, NY prosecution would still be allowed.

Mueller is dealing with this quirk of NY law by only charging Manafort with some of the crimes he could charge. Then if the president issues a federal pardon, NY could prosecute him for other different crimes.

And there are currently 12 exceptions to this NY law about prosecuting state crimes. Schneiderman is dealing with the problem for all involved in Trump Traitor Oligarch Russiagate by asking for one more exception.

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Response to Native (Original post)

Wed Apr 18, 2018, 03:52 PM

4. Rachel said on her show last night that Trump could put in an new AG for SDNY

Is Schneiderman just acting AG for the recused Berman or whatever his name is?

Some safeguards need to be put in place because it sure seems like ultimately the orange troglodyte has a way of removing people who we're relying on to remove him.

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Response to meadowlark5 (Reply #4)

Wed Apr 18, 2018, 03:54 PM

7. Schneiderman is the Attorney General of the State of New York, he does not work for the Federal Govt

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Response to meadowlark5 (Reply #4)

Wed Apr 18, 2018, 03:55 PM

9. Schneiderman is the state AG

SDNY is federal

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Response to meadowlark5 (Reply #4)

Wed Apr 18, 2018, 03:58 PM

10. Far as I know, lark5, Mr. Schneiderman holds a duly elected office of the State of NY, and

Spanky can’t touch him...in fact, did you know? - Trump DESPISES Mr. Schneiderman, and used to go after him a LOT in his tweets, back in the day, constantly referring to Mr. Schneiderman as a “lightweight” -

Well, we’ll see about that...AG Schneiderman is a REAL pit bull, unlike this Cohen punk -


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Response to meadowlark5 (Reply #4)

Wed Apr 18, 2018, 04:02 PM

11. Ok. So can Schneiderman do anything about the Cohen case?

Or would he be in charge of prosecuting/investigating a whole slew of different Trump family crimes?

I really don't want that slippery mobster to get out of any of this.

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Response to meadowlark5 (Reply #11)

Thu Apr 19, 2018, 03:49 PM

33. No reason SDNY can't keep Schneiderman apprised of any likely state crimes.

Then Schneiderman can prosecute at will (within the limits of NY law).

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Response to Native (Original post)

Wed Apr 18, 2018, 03:54 PM

6. Go for it, New York. And I hope a lot of other states follow suit.

Since a lot of dump's business is in NY that might put a crimp in his style.

I was also wondering about RICO prosecutions. Can these be pardoned? Especially by someone who is engaged in the activities?

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Response to Native (Original post)

Wed Apr 18, 2018, 03:55 PM

8. There a theory that Mueller is leaving charges for the state of N.Y. to file if there are pardons

Money laundering for one.

He could charge some defendants with more than he as.

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Response to YessirAtsaFact (Reply #8)

Wed Apr 18, 2018, 04:48 PM

15. bank fraud, money laundering and threats of violence (Stormy) are state crimes

and all are in play from what I've read.

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Response to Native (Original post)

Wed Apr 18, 2018, 04:42 PM

13. Unfortunately, the NY State Senate is under R control......

And a bill needs to pass both houses before the gov can sign it.

Looks like the good guys lose. This means unless schneiderman cuts a deal with muehler and files charges now, trump can let his whole crime family completely off the hook.

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Response to getagrip_already (Reply #13)

Wed Apr 18, 2018, 05:44 PM

18. And let's not forget...

 

..it's under R control because of a group of Democrats who caucus with and throw control to the Republicans. More New Yorkers elected actual Democrats than they did Republicans, and then the Democrats turned around and gave control to the Republicans.

And Andrew Cuomo has wink-winked allowed this, claiming he has no authority to do anything and then recently in the face of a liberal primary challenger all of a sudden found a way to do so.

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Response to getagrip_already (Reply #13)

Wed Apr 18, 2018, 06:11 PM

19. Yeah and I don't understand that at all. Some breakaway group of Democrats caused that

even though Dems appeared to win the majority of seats.

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Response to Native (Original post)

Wed Apr 18, 2018, 04:45 PM

14. Dual Sovereignty, Double Jeopardy, New York State Law

Under the "dual sovereignty" doctrine, the double jeopardy clause of the United States Constitution does not prohibit successive federal and state prosecutions for the same conduct (Bartkus v Illinois, 359 US 121 [1959]). But in New York, protection against double jeopardy is statutory as well as constitutional. I think Utah is the same.

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Response to Native (Original post)

Wed Apr 18, 2018, 06:14 PM

20. Retroactive application?

I hope I’m wrong, but I’d be stunned if they could retroactively apply changes in the law to past conduct. The idea that these unethical, unpatriotic, thieving criminals could get a walk just bums me the hell out.

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Response to OneBro (Reply #20)

Wed Apr 18, 2018, 06:25 PM

21. Presumably most of the prosecutions haven't happened yet and it wouldn't be retroactive.

Also the New York law allows prosecutions for racketeering and income tax evasion.

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Response to PoliticAverse (Reply #21)

Wed Apr 18, 2018, 08:25 PM

23. + 1

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Response to Native (Original post)

Wed Apr 18, 2018, 06:40 PM

22. Any funny business with Cohen's taxi licenses would be State of NY

and I'm sure NY State banking laws were broken with all the money-laundering, false statements and misrepresentations to acquire loans for Trump's business. Trump and Co. will likely be spending the next couple of decades in State Court in NY and NJ.

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Response to Native (Original post)

Wed Apr 18, 2018, 08:29 PM

24. Kick!

I hope Cuomo and the state legislature have the courage to do what Attorney General Schneiderman is suggesting.

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Response to Native (Original post)

Wed Apr 18, 2018, 09:27 PM

25. Good move!

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Response to Native (Original post)

Wed Apr 18, 2018, 10:27 PM

26. The Resistance is moving!

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Response to Native (Original post)

Thu Apr 19, 2018, 04:51 AM

27. Great story, but TERRIBLE headline


He's not seeking "power to bypass presidential pardons".

Rather, he's seeking to close a state-level loophole that might provide a backdoor escape route for Trump under NY (state) law.

It's a really smart move, and he wouldn't be doing it if state-level prosecutions weren't clearly in the pipeline.


MDN

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Response to Mike Niendorff (Reply #27)

Thu Apr 19, 2018, 09:13 AM

29. I think the headline is pretty spot on -

with regard to Article 40, he's only looking to add a single exception, an exception that is specific to presidential pardons. I mean if you take it out of context (forget that he's the state AG), I guess one could assume he's trying to do away with all pardons?

NPR's headline stated he was looking to close the "Pardon Loophole." Not much difference IMO. I know there are space constraints that a writer isn't aware of, so while it isn't feasible to do so, I do wish they were allowed to actually write their own headlines. I think that would be a major improvement all around.

From Schneiderman's letter: "The problem arises under Article 40 of the Criminal Procedure Law. Under that law, jeopardy attaches when a defendant pleads guilty, or, if the defendant proceeds to a jury trial, the moment the jury is sworn.xi If any of those steps occur in a federal prosecution, then a subsequent prosecution for state crimes “based upon the same act or criminal transaction” cannot proceed, unless an exception applies.xii New York’s law provides exceptions when a court nullifies a prior criminal proceeding (such as when an appeals court vacates a conviction),xiii or even when a federal court overturns a federal conviction because the prosecution failed to establish an element of the crime that is not an element of the New York crime.xiv But there is no parallel exception for when the President effectively nullifies a federal criminal prosecution via pardon."

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Response to Native (Original post)

Thu Apr 19, 2018, 08:36 AM

28. I wonder why NY has this double jeopardy deal that other states don't?

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Response to LiberalFighter (Reply #28)

Thu Apr 19, 2018, 09:27 AM

30. I believe it was unintended...

I'm assuming you're talking about the pardon loophole and not double jeopardy in general, since that's a basic protection that keeps people from being tried more than once for the same crime.

In Schneiderman's letter he states that based on his staff's research, they believe the pardon loophole was unintended. Here's an excerpt:

The President’s power to pardon federal crimes is sweeping and subject to limited review by the other branches of government. Our country’s founders argued this power was “benign” and would be used by presidents with “scrupulousness and caution.” Thus far, they have generally been right. Since the Nation’s founding, presidents have used this power sparingly, largely to do justice, rather than subvert it.

Yet recent reports indicate that the President may be considering issuing pardons that may impede criminal investigations. This is disturbing news, not only because it would undermine public confidence in the rule of law, but also because—due to a little-known feature of New York law that appears to be unique in its reach—a strategically-timed pardon could prevent individuals who may have violated our State’s laws from standing trial in our courts as well. My staff has researched the relevant state statute and its legislative history, and can find no evidence that the Legislature intended this result.

Although more than twenty states grant only the minimum double-jeopardy protection required by the Constitution, New York and several other states have added statutory protections that go beyond those requirements. These laws generally provide limited protections against successive prosecutions under state criminal law only where another jurisdiction (such as another State) already has prosecuted the defendant for identical criminal acts or offenses. As a longtime supporter of criminal justice reform, I am proud that New York has long been among the leaders in protecting criminal defendants from facing successive punishments for the same acts.

Nevertheless, New York’s statutory protections could result in the unintended and unjust consequence of insulating someone pardoned for serious federal crimes from subsequent 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.

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Response to Native (Original post)

Thu Apr 19, 2018, 10:16 AM

31. Go, brother, go!

The posturing is getting more entertaining by the minute. What a show.

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Response to Native (Original post)

Thu Apr 19, 2018, 12:01 PM

32. I hope like hell this effort is successful.

I don't want to see a single one of them avoid prosecution in this way.

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