What if Donald Trump pardons people identified as targets by Robert Mueller before, during, or after they are prosecuted in federal court? Would those people escape accountability for their acts, or would a state—particularly New York State, which has jurisdiction over Trump Tower and several key players—be able to prosecute them for what is defined as the same offense based on acts occurring in that state?
New York Attorney General Eric Schneiderman has drawn considerable media attention by proposing amendments to New York State law designed to pave the way for such post-federal-pardon New York State prosecutions, just in case.
Under those circumstances, the idea of giving the state a second chance to hold lawbreakers accountable may feel like justice. But before we start cheering for Schneiderman’s proposed legislative fix, I want to put in a word for the Double Jeopardy Clause. Schneiderman’s proposals do not violate the U.S. Constitution’s Double Jeopardy Clause as interpreted by the Supreme Court. But it is at least arguable that they violate the Double Jeopardy Clause as it should be interpreted.
According to the Fifth Amendment of the Constitution, no person shall “be subject for the same offence to be twice put in jeopardy of life and limb.” Stripping away the archaic language and the unsettling focus on “life or limb,” the Double Jeopardy Clause prohibits successive prosecutions for the same offense in order to serve justice. As the Supreme Court explained in Green v. United States (1957), the guiding purposes of the Double Jeopardy guarantee are “that the State, with all its resources and power, should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that, even though innocent, he may be found guilty.”
The New York Attorney General can advocate for allowing successive prosecutions under particular circumstances because the Supreme Court has held in Bartkus v. Illinois (1959) that the Double Jeopardy Clause does not bar even substantively identical prosecutions if they are brought by different (state or federal) sovereigns. This ruling, known as the “dual sovereignty doctrine,” allows a state to take a second crack at a federal prosecution or vice versa.
The Court’s dual sovereignty doctrine blinks reality. As Justice Hugo Black pointed out in his Bartkus dissent, a second trial for the same act is no less offensive if two sovereigns instead of one are involved. From the point of view of the accused, the embarrassment, anxiety, ordeal, and danger of being exposed a second time to conviction or further punishment do not diminish because the prosecutors are from two different jurisdictions. And from the prosecutor’s point of view, practice can make perfect, enabling the prosecution to win a conviction (or harsher penalty) the second time around by reshaping the evidence or reconsidering strategy, regardless of where the first prosecution was conducted.
The ACLU has resisted embracing the overly permissive dual sovereignty doctrine even in tempting contexts like allowing federal reprosecution for a civil rights violation after a state court acquittal – as happened in the Rodney King case. I recounted the ACLU’s struggles with this issue in an article linked here. I have also discussed why I disagreed with Akhil Amar’s defense of such reprosecutions here.
New York State is to be commended for taking double jeopardy values more seriously than the Supreme Court does by legislating a prohibition against repetitive prosecutions, even by different jurisdictions. (The federal government has adopted a similar although less extensive protection through the “Petite policy.”) It is because the New York legislative bar is set high that the legislature has constitutional space to make an exception to its general policy and lower the bar, even as far as the federal constitutional floor.
But in the aspirational ACLU world where the dual sovereignty doctrine does not exist – which is also the New York legislature’s world – we need to ask whether creating a special exception to same-offense reprosecution for people who have been pardoned is actually consistent with double jeopardy values.
The chief argument in favor of allowing dual prosecutions after a pardon is that an executive official might corruptly pardon a guilty person, immunizing that person from any punishment. But the same permission could lead to reprosecution of an innocent person, wrongfully convicted — perhaps by a biased jury — and then justly pardoned by a President or Governor. (I’m visualizing someone like Leo Frank.)
I discussed in the linked articles why the possibility of a state insulating a civil rights defendant by conducting a sham prosecution should not entitle the federal government to undermine double jeopardy values by bringing a second prosecution. I proposed alternative ways for the federal government to serve its interests by asserting the power to preempt ineffectual or collusive state prosecutions. Schneiderman objects to the President being able to effectively pardon a person for committing a state crime. There is indeed an asymmetry here. In a world without the dual sovereignty doctrine, the state, lacking the muscle of the Supremacy Clause, would not have a comparable prerogative to insist on vindicating its own state interests in the face of preclusive federal conduct. I am inclined to think that asymmetry would be consistent with our constitutional scheme of federalism, which makes federal law the supreme law of the land.
There would be a different kind of symmetry if a state pardon could also preclude a federal prosecution. But I am pondering whether the unique nature of a pardon challenges the double jeopardy equation as I have described it. First, if a state were to abruptly pardon a federal target, the federal government might not have an opportunity to act preemptively (either by initiating its own proceeding, or by enacting legislation to allow federal preemption), undercutting the viability of my alternative solution.
Second, what is the nature of a pardon? If we view pardons as an integral part of the adjudicative system, a second jurisdiction’s ability to reprosecute for the same offense should probably depend, simply and formally, on whether the pardon was issued before or after jeopardy attached in the first prosecution. But might the political nature of a pardon justify treating pardons as an external influence on prosecutions, not realistically subject to the rules we have set for fair adjudication? If pardons upset the Double Jeopardy Clause’s balance of interests, then Schneiderman could be right in regarding them as creating a “loophole.” I would welcome discussion of this issue by people who know more than I do about the history and philosophy of pardons.
Another issue looming in the background is New York’s definition of what would count as the “same offense.” The New York statute provides a number of scenarios where a prosecutor would be allowed to reprosecute someone for the same conduct or transaction. (Here too, the New York protections exceed what is required by federal constitutional law.) How much leeway would these exceptions give New York prosecutors to select charges that would not be viewed as the “same” as a pardoned offense in the scenarios Schneiderman is imaging? In other words, how much of a difference would it actually make to close the pardon loophole? I would be interested in hearing discussion of the practical effect of the proposed amendment by people who know more than I do about how the New York definition of “same offense” has been interpreted and how it might apply to the kind of crimes Schneiderman is worrying about.
In the Supreme Court’s dual sovereignty world, it isn’t necessary to answer or even ask such thorny questions. New York’s principled policy requires thoughtful analysis and discussion of any proposed exception.
All in all, I’m not ready to cheer for the amendment, which raises many challenging issues. In addition to the question of how to conceptualize pardons, and the scope of the “same offense” coverage, I find Schneiderman’s proposed exception to the exception – for pardons issued five years or more after entry of judgment for the offense – rather arbitrary in this context.
But in the current climate, it is something of a relief to see a state legislature considering just how far beyond Supreme Court law to go in protecting rights rather than working to find ways to resist rights the Supreme Court has recognized. New York may find its way to a principled double jeopardy exception, but if there is no principled way to get there, I hope and expect that the legislature will not retreat from its commitment to double jeopardy principles just to enable conviction in a particular category of politically inflected cases. As Blackstone said long ago, due process principles sometimes require us to let guilty people go free so that we can protect the innocent and preserve our fundamental values.