The president-elect campaigned against the nonenforcement policies of progressive prosecutors such as Bragg.
The president-elect campaigned against the nonenforcement policies of progressive prosecutors such as Bragg.
L ast week, in posting on the filing of both federal and state murder charges against Luigi Mangione in the shooting death of UnitedHealthcare CEO Brian Thompson, I closed by raising a question: How much cooperation will there be on the case between the incoming Trump Justice Department and Manhattan District Attorney Alvin Bragg?
The DA is a progressive Democrat who is up for reelection next year in a county that (a) elected him because of his propensity to sue Trump while at the state attorney general’s office and (b) preferred Kamala Harris to Trump by a whopping 63 percent in the 2024 election. And, of course, Bragg not only spent much the last year prosecuting Trump; he has persisted (along with Judge Juan Merchan) in declining to dismiss the criminal case against the now-president-elect, preferring to hold in suspended animation (for four years!) the pending proceedings — meaning: Trump’s sentencing on 34 felony business-records counts, the entry of the formal judgment of conviction, and the ultimate appeal.
In assembling his new administration, President-elect Trump has prioritized the installation of loyalists in key posts. The two most relevant here are former Florida attorney general Pam Bondi, Trump’s nominee to be U.S. attorney general, and Jay Clayton, who chaired the Securities and Exchange Commission during Trump’s first term and has been nominated to serve in his second term as U.S. attorney for the Southern District of New York. It was the SDNY under Biden DOJ management that just brought the federal capital murder case against Mangione. Given the vast number of critical government posts a new president must fill, the fact that Trump tapped Clayton just nine days after being elected illustrates his determination to have his own top prosecutor flexing federal muscles in Bragg’s backyard.
Traditionally, the SDNY and the New York County DA’s office (DANY) are friendly rivals. (For those unfamiliar with Empire State nomenclature, the borough of Manhattan is New York County.) Because there is so much concurrent federal and state jurisdiction over crime (e.g., drug trafficking, organized crime, gangs, financial fraud, child pornography), efficient law enforcement in the city dictates that the two offices must cooperate. This typically involves, for example, the understanding that the feds will use their drug-trafficking resources to address interstate organizations involved in the importation and distribution of illegal narcotics while the state prosecutors take the lead on street-level drug dealing and possession crimes.
Moreover, the New York City Police Department, which usually brings its cases to the city’s five county district attorneys (one in each borough), has a presence on major federal task forces — terrorism, drugs, firearms, and gangs. This enables the NYPD to bring some cases to the feds and encourages the SDNY to bring its resources to bear on major urban crime problems. For example, when I was a young SDNY prosecutor in the Eighties, then–U.S. attorney Rudy Giuliani established a weekly “federal day”; with the state’s cooperation, we would federally prosecute defendants arrested that day on what were normally state drug crimes committed in Hell’s Kitchen, Washington Heights, and other heavy trafficking areas in Manhattan and the Bronx. (Those two city boroughs are located in the SDNY; the other three — Brooklyn, Queens, and Staten Island — are in the federal Eastern District of New York, where the EDNY’s U.S. attorney customarily has similar cooperative relationships with the county DAs.)
I said “friendly rivals” because it’s not all one big agape fest. Prosecutors tend to be ambitious and competitive by nature; chief prosecutors — county DAs and district U.S. attorneys — often have political ambitions. So, amid the general air of cooperation, there are turf battles over notable cases that draw intense media coverage.
This is a bigger issue in New York than elsewhere in the country. As I’ve addressed a number of times, the dual sovereignty doctrine is a carve-out from Fifth Amendment double jeopardy protection. Normally, a person in the United States may not be prosecuted twice for the same offense. That is not the rule, however, when cases are brought by different sovereigns — and in our federalist system, the federal and state governments are deemed separate sovereigns for these purposes. So, let’s say a person sells a kilogram of heroin in Colorado; he may be prosecuted by a state district attorney on that transaction even if he has already been acquitted in federal court for the same crime. The federal government and Colorado’s state government represent separate sovereigns; ergo, a successive prosecution by the latter is not barred by the former’s prosecution.
But that’s not how it works in the Empire State’s more defendant-friendly confines.
New York follows a doctrine of equitable double jeopardy that is significantly broader than federal double jeopardy under the Fifth Amendment. (See Section 40.20 of New York’s penal code.) The state’s doctrine theory holds that prosecutors, from whatever jurisdictions, should be limited to one attempt to try a defendant for any and all crimes that arise out of a single factual transaction. (E.g., a single drug deal — the “transaction” — may give rise to multiple crimes, such as conspiracy, attempt, transportation of illegal narcotics, possession with intent to distribute, etc.) New York state prosecutors are thus barred from bringing a subsequent prosecution if a different jurisdiction (i.e., a different sovereign, such as the federal government) has already prosecuted the same defendant for crimes arising out of the same transaction.
Notice, this is not limited to a second prosecution of the same exact crime, which is what double jeopardy — in the absence of dual sovereignty — ordinarily prohibits. New York is generally barred from prosecuting if a different sovereign previously prosecuted a case involving the same defendant for crimes stemming from the same course of conduct. So, let’s say a defendant robbed a bank, the feds charged him with the crime of bank robbery, and the jury either convicted or acquitted him; under state law, New York prosecutors would be barred from charging the same defendant with, say, conspiracy to commit bank robbery, because the conspiracy and the robbery arose out of the same criminal transaction.
Equitable double jeopardy has always given the SDNY a major advantage in turf battles with the DANY. If the SDNY and the DANY are investigating the same criminal transaction, and the SDNY quickly indicts and brings to court a boatload of federal charges, the DANY can be blocked from indicting the case.
Looked at the other way, the DANY has to prosecute first or it probably won’t be able to prosecute at all.
As noted above, the Biden DOJ (meaning, in this instance, the SDNY) is coordinating with the DANY on their respective cases against Mangione. In the press statements announcing federal charges, Edward Kim, the acting SDNY U.S. attorney, stated his anticipation that the DANY would proceed with the trial of its charges against Mangione, and then the SDNY would try him.
Well, that’s easy for Kim to say. After all, the Mangione case is not going to be his responsibility. Kim is apt to be out of his job on January 20, if he hasn’t already resigned by then, because President Trump is certain to fire all Biden appointees upon taking office. It’s conceivable that Kim could be kept on for a brief time because he is merely the “acting” U.S. attorney for the SDNY, not the Biden political appointee (that appointee, Damian Williams, stepped down shortly after Trump won the election). In any event, though, the SDNY will be under hands-on Trump management as soon as Clayton is confirmed. Trump clearly wants that to happen fast; that, to repeat, is why he nominated Clayton so early in the transition process.
Suffice it to say that Jay Clayton’s mandate from Donald Trump will not be: Make sure to play nicely with Alvin Bragg.
I do not believe the Trump DOJ will feel bound in any way to follow the Biden DOJ’s plan for the Mangione case. And I would say that even if the Biden-era SDNY had not charged Mangione with a death-penalty offense just a few days before Biden cynically commuted to life-imprisonment the capital sentences of nearly all federal death row inmates — a move to appease the Democrats’ progressive base while irking Trump, but one that does not affect Mangione (or, for that matter, affect the three death-row inmates whose capital cases were prosecuted by the Biden-era and Obama-era DOJ — inmates whom Biden somehow rationalized were not covered by his, er, deeply held anti–death penalty principles).
Now, impossible as this may seem, let’s put politics aside for a moment. When a person commits a heinous murder, he should be prosecuted to the full extent of the law by any jurisdiction — or sovereign — whose laws have been broken. Personally, I want the murderer of Brian Thompson to face both state and federal charges. That is the public interest.
To pull that off, however, the federal and state prosecutors need to put pettiness aside — whether that pettiness is the result of bad blood between the president and the DA or of the usual inter-office rivalry that always thrums in the Big Apple. Having been through a number of turf battles, I can attest that there are many ways in which infighting — the tactics that competing prosecutors’ offices use to try to get control of a high-profile case — can redound to the benefit of the accused. The senior folks in the SDNY and the DANY should work cooperatively, not at cross purposes.
Alas, here in Realityville, I won’t be holding my breath. Even if Bragg hadn’t prosecuted Trump, it would be reasonable to expect tension between the DANY and the SDNY. There always has been, at least when it comes to big cases in Manhattan. Plus, Trump expressly campaigned against the nonenforcement policies of progressive prosecutors such as Bragg. The Trump DOJ will undoubtedly make a point — at least where there is federal jurisdiction — of prosecuting crimes that Bragg and other big city Democratic DAs are derelict in addressing.
Bragg’s unabashedly partisan prosecution of Trump will undoubtedly make SDNY–DANY relations more combustible. With Mangione already in the dock, in federal and state courthouses separated by a short stroll through the city’s bustle, the fireworks are apt to start sooner rather than later.