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Editorial: Close presidential pardon loophole

Editorial: Close presidential pardon loophole

Current law prevents state from prosecuting criminals after federal pardon
Editorial: Close presidential pardon loophole
President Donald Trump delivers remarks at the Nashville Municipal Auditorium in Nashville, Tenn., May 29, 2018.
Photographer: Tom Brenner/The New York Times

The more loosey-goosey President Trump gets with his presidential pardons, the more fearful state officials are that he’s one day going to turn loose a serious criminal.

On Thursday, after Trump announced a pardon for Dinesh D’Souza — convicted of campaign finance fraud in New York’s 2012 U.S. Senate race — new state Attorney General Barbara Underwood reinforced her office’s push for a state law that would prevent presidential pardons from overriding state crimes.

A change in the law is a necessary protection for New Yorkers from presidential acts of clemency for criminals who break state laws. It also would reinforce the state’s right to exercise its own discretion over those who break its laws.

So why is this a problem for the attorney general, and why does it involve presidential pardons?

Well, there’s this clause in the Fifth Amendment to the Constitution about “double jeopardy” that protects individuals from being prosecuted and punished multiple times for the same crime.

But the clause doesn’t prevent the state and federal governments from prosecuting the same crime under their own respective laws.

So how does that relate to a president pardoning an individual being prosecuted under federal law?

For some odd reason, state lawmakers long ago decided that double jeopardy in New York would apply in a case in which a defendant pleads guilty in a federal case or in which the federal case reaches the point where a jury is sworn in.

Under state Criminal Procedure law, if a federal case reaches that stage, then state prosecution “based upon the same act or criminal transaction” for state crimes cannot proceed (with a few limited exceptions), the AG’s office stated.

A presidential pardon would nullify the federal prosecution, which then, under the state statute, would prevent that person from being prosecuted under state laws.

The unintended consequence of the state statute is that the pardoned individual could effectively escape punishment from all of his crimes — federal and state — even though the presidential pardon only applies to federal crimes.

Depending on when in the process the presidential pardon is issued, the criminal could escape punishment without even having been subjected to a trial.

That’s just absurd. And it’s all on New York’s Legislature to fix it.

The bill pending before the Legislature (A10422/S8236) would allow for subsequent state prosecution in cases where a presidential pardon is issued within five years of the federal judgment.

Pardons issued in older cases would not be subject to the new state law.

Presidential pardons were designed to correct injustices, not reward them.

This law is needed to make sure presidents can’t use their power to undermine the rule of law in New York.

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