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N.Y. Bill Would Allow Prosecution Despite Presidential Pardon


President Trump recently pardoned Lewis "Scooter" Libby, the former chief of staff to Vice President Dick Cheney who was convicted of perjury and obstruction of justice in 2007. And yesterday, the president touted his power further, saying on Twitter that he was considering a posthumous pardon of heavyweight boxer Jack Johnson. Critics of the president have accused him of signaling that he may pardon his own associates, who are now under investigation.

New York Attorney General Eric Schneiderman would like to have the power to prosecute any people the president may pardon. And so last week, he proposed to change the state's laws so that anyone pardoned will not be protected from being brought to court in New York. Schneiderman and President Trump have had business before. The New York AG led the investigation into Trump University. That resulted in a $25 million settlement. Trump, for his part, has called Mr. Schneiderman, quote, "the nation's worst AG." But the proposal is complicated. And here to break it down for us - we're joined by former U.S. Attorney of Alabama Joyce Vance. Welcome.


GARCIA-NAVARRO: What is the current New York law regarding prosecutions of people who've been pardoned for federal crimes?

VANCE: So New York law goes a little bit further than it has to go. The Fifth Amendment protects a defendant who's been tried on a charge once from being tried again. We call that double jeopardy. But it really only applies if you're tried by the same sovereign. There's a little loophole in New York law that apparently was unintended because it provides protection from being tried a second time not just for defendants who were acquitted the first time they were tried on a charge but also for defendants who received a pardon.

GARCIA-NAVARRO: So if this proposal passes, what changes?

VANCE: It's an issue of timing. So fast forwarding and putting this in the context of the Trump investigation, defendants who've already pleaded guilty or future defendants who might plead guilty or go to trial and have a jury impaneled in their case would then be ineligible for retrial in the state of New York if they were to be pardoned by President Trump at that point in the proceedings. And that technical timing issue is what's given prosecutors in the state of New York some concern.

GARCIA-NAVARRO: I guess the crux of the matter is, is there a specific reason, in your view, that Eric Schneiderman is bringing up this legislation? Who could President Trump potentially pardon that could end up under New York jurisdiction?

VANCE: Eric Schneiderman is being a good prosecutor and being extremely careful. They've obviously looked at the law on double jeopardy very carefully - and thinking that a defendant, perhaps Mr. Cohen, whose house and business were the subject of a federal search warrant over the past couple of weeks. And really anyone else who engaged in criminal activity in the state of New York could theoretically be prosecuted by the attorney general or by a district attorney.

GARCIA-NAVARRO: As long as I have you, I want to ask you about developments in the Mueller investigation. The president was having some trouble filling his legal team after John Dowd left. This week, Rudy Giuliani joined the team, saying he wants to bring an end to the Mueller investigation. Does that sound possible to you?

VANCE: It seems unlikely. Mr. Giuliani has said he expects that he will negotiate a settlement within the next couple of weeks. And among many other reasons, we know that's not possible because Paul Manafort faces two trials that won't take place until later this year.

GARCIA-NAVARRO: What does he bring to the team then?

VANCE: That's a good question. Obviously, the president has a comfort level with him. Mr. Giuliani is a former U.S. attorney, former leadership at the Justice Department. And one would hope that perhaps he can help the president understand that system a little better, as well.

GARCIA-NAVARRO: Joyce Vance is a former U.S. attorney of Alabama. Thank you so much.

VANCE: Thanks for having me. Transcript provided by NPR, Copyright NPR.