New York Attorney General Seeks Power to Bypass Pardons

[RandySF]

Attorney General Eric 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.


https://politicalwire.com/2018/04/18/new-york-attorney-general-seeks-power-to-bypass-pardons/

[unblock]

1. Until today I had no idea this required a change in New York law.

[RandySF]

2. I try to be informative.

[Hassin Bin Sober]

3. Me neither. Why did they wait until now?

Now I have a question:

will amending the statutes now and attempting state prosecution for crimes committed under the more liberal double jeopardy rules lead to a successful claim of ex post facto enforcement?



The AG doesn’t seem to think so but I could see an argument to be made. But I’m not an attorney.

On the brights side, it appears some specific amendments were made, post Leona Helmsley, to exempt certain tax frauds from the more forgiving NY double jeopardy restrictions.

If I’m not mistaken, tax fraud is a big part of the pie. The $64,000 dollar question is do trump and his gang’s potential crimes fit the exemption?

[unblock]

8. I wouldn't think ex post facto would apply because these were all crimes when they were committed

But I'm not an expert on New York criminal law....

[Nevilledog]

4. It's a different jurisdiction.

I don't understand why there would have to be any necessity for a change in New York law as federal and state prosecutions are separate jurisdictions. Even different counties in a single state can have separate prosecutions for the same criminal conduct. For example, I steal a car in Maricopa County and then take that same car to Yavapai County......I can be charged with possessing the stolen vehicle in BOTH counties. Say I take that same vehicle to another state, they could prosecute also. I could be convicted for the same conduct multiple time. If the same evidence was used to get a conviction in BOTH counties and the other state I would receive concurrent punishment.

Federal and state prosecutions are separate legal jurisdictions so both should be able to proceed. Also, to pardon someone I believe it's necessary for a finding of guilt.

I'm a retired criminal defense attorney (did it for 27 years). I practiced at the state level and never handled a case that was concurrently subject to federal prosecution, but that's more of a practical consideration that the states would defer to the Feds and let them foot the bill.

[Hassin Bin Sober]

5. You should read the AGs letter in the article.

Apparently NY has, via statute, a rather liberal interpretation of what constitutes double jeopardy. It includes restrictions, in some cases, on double jeopardy based on prosecution in other jurisdictions.


Even if the amend these laws, would an ex post facto defense arise as the crimes were committed under the liberal laws?

The NY AG seems to think amending the statute prior to prosecution is enough. I wonder how successful an ex post facto defense could be.

I remember reading a case about a guy mounting a successful challenge to more stringent parol guidelines because his crimes were committed prior to the new tougher guidelines.

I’m no attorney

[Nevilledog]

6. Which I find mind boggling, but I'm in Arizona and nothing is liberally interpreted.

When you think about it though how often would something like this come up. My experience was always that the State would defer to the Feds desire to prosecute an individual....... of course none of those people had the chance of being pardoned by the fucking president.

[Hassin Bin Sober]

7. I edited with a question if this late in the game change could lead to a successful ex post facto...

.... challenge even if they do enact changes prior to the prosecution of state crimes.

This news is a bit of a potential bubble burster.

One good thing is specific state tax fraud charges are exempt. The question is are they the right charges?

[Nevilledog]

9. Timing of the change would control.

I think that as long as the change was made before he was convicted AND pardoned on Federal charges it would most likely not be subject to ex post facto arguments. My guess is Cohen is involved in so many criminal enterprises that NY could get him on things separate from the Feds. I'm not familiar with N.Y.'s sentencing guidelines for specific crimes, but having enough lower level charges occurring on separate occasions would potentially subject Cohen to consecutive sentences...... So, convict him on 10 charges of state tax fraud, and say that carries a 2 yr sentence per crime..... Running them consecutive adds up to 20 years.


Edit to add: Perhaps a simple solution would be to charge him in N.Y. first..... Get convictions there and then charge him Federally. Then even if Trump pardons Cohen he still has the state convictions. The whole double jeopardy argument in regards to current N.Y. laws would be moot.