New York State Attorney General Barbara Underwood wants Americans pardoned by the president to face additional criminal prosecution in her state, a seeming endorsement to violate the Constitution's moratorium on "double jeopardy."
Underwood released a statement on Friday calling for New York lawmakers to close the state's "double jeopardy loophole." Her demand came after President Donald Trump pardoned Dinesh D'Souza.
What did she say?
President Trump’s latest pardon makes crystal clear his willingness to use his pardon power to thwart the cause of justice, rather than advance it. By pardoning Dinesh D’Souza, President Trump is undermining the rule of law by pardoning a political supporter who is an unapologetic convicted felon. First it was Sheriff Joe Arpaio. Then it was Scooter Libby. Now it’s Dinesh D’Souza.
We can’t afford to wait to see who will be next. Lawmakers must act now to close New York’s double jeopardy loophole and ensure that anyone who evades federal justice by virtue of a politically expedient pardon can be held accountable if they violate New York law.
Underwood urged lawmakers to pass a bill endorsed by disgraced former New York Attorney General Eric Schneiderman, which would allow New York State prosecutors to prosecute people under New York statutes for "parallel federal crimes" pardoned by the president.
"Closing the loophole would ensure that individuals who broke New York law could not evade accountability for any state crimes as a result of a strategically-timed pardon by the president," Underwood said.
New York law currently forbids additional prosecution for crimes already prosecuted at the federal level, a reflection of the U.S. Constitution's Fifth Amendment's prohibition on "double jeopardy."
But even if New York lawmakers approve such a law, the state would almost certainly be at odds with the Supreme Court, which ruled in the 1969 case Benton v. Maryland that the Fifth Amendment's double jeopardy clause applies to the states, regardless of whether or not a state allows double jeopardy.