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N.Y. Attorney General Moves to Constrain Trump’s Pardon Power

New York Attorney General Eric Schneiderman speaks during a news conference in New York., February 12, 2018. (Brendan McDermid/Reuters)

New York attorney general Eric Schneiderman is advocating a change to the state’s double-jeopardy laws that would allow him and other local prosecutors to bring charges against individuals pardoned by President Donald Trump, according to a letter he sent to the governor and state legislators Wednesday.

The letter, obtained by the New York Times, makes the case that the double-jeopardy law, which holds that an individual can’t be charged with the same crime twice, should be modified so that Trump aides who escape federal prosecution via a presidential pardon can be charged with the same crime in state court.

The proposal, if approved by state lawmakers and Governor Andrew Cuomo, would cement Schneiderman’s office — which is currently suing the Trump administration in connection with issues ranging from tech policy to environment regulations — as a bulwark of the so-called resistance.

“We are disturbed by reports that the president is considering pardons of individuals who may have committed serious federal financial, tax, and other crimes — acts that may also violate New York law,” Mr. Schneiderman said in a statement provided by his office.

Schneiderman and Trump share a contentious history. Schniederman oversaw the investigation into Trump University, which resulted in a $25 million fine, and Trump responded in characteristic fashion, calling Schneiderman “dopey,” a “lightweight,” and a “loser.”

The Fifth Amendment to the Constitution only prohibits multiple prosecutions at the federal level, but roughly half of the states, including New York, have additional double-jeopardy protections that prohibit state prosecutors from charging a person with the same crime they were exonerated for in federal court.

“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,” Schneiderman writes in his letter, “even if that person was never tried or convicted in federal court, and never served a single day in federal prison.”

Trump, who recently pardoned Scooter Libby — a former aide to Vice President Dick Cheney convicted of perjury, obstruction of justice, and lying to the FBI in connection with the “outing” of CIA agent Valerie Plame — has yet to comment on the move.

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