Double jeopardy? New York law could trump a pardon backstop

In this file photo taken on Monday, Nov. 6, 2017, Paul Manafort, President Donald Trump's former campaign chairman, leaves the federal courthouse in Washington. Russian state television stations have jumped at what they perceive as a relatively mild sentence handed to former Trump campaign chairman Paul Manafort, saying it is proof that U.S. special counsel Robert Mueller's investigations have failed to prove Trump's collusion with Russia. (AP Photo/Jacquelyn Martin, File)

By DAVID KLEPPER and MICHAEL R. SISAK Associated press

ALBANY, N.Y. (AP) — Paul Manafort’s indictment on state-level charges in New York could offer a blueprint for keeping President Donald Trump’s associates behind bars if he pardons them on federal charges stemming from the Russia probe.

But those backstop efforts could be upended if state lawmakers can’t close what some call the “double jeopardy loophole” — a New York law that state prosecutors see as a major hurdle to taking up cases that have already been resolved at the federal level.

“If we do not close this loophole, and close it soon, New Yorkers may never realize the justice they deserve,” said Sen. Todd Kaminsky, a Long Island Democrat and sponsor of legislation to tweak the law.

That push gained new momentum Wednesday after a Manhattan judge unsealed state charges accusing the 69-year-old Manafort of conducting a yearlong mortgage fraud scheme that raked in millions of dollars.

The state charges were announced just minutes after Manafort was sentenced in the second of two federal cases stemming from Special Counsel Robert Mueller’s probe of Russian influence on the 2016 election. They included allegations Manafort misled the U.S. government about foreign lobbying work and encouraged witnesses to lie on his behalf.

Some of the conduct described in the New York indictment appeared to echo the charges and testimony in Manafort’s federal case in Virginia, but Manhattan District Attorney Cyrus Vance Jr. appeared to strategically build his case around charges of mortgage fraud and falsifying business records — which aren’t federal crimes.

New York’s double jeopardy law doesn’t explicitly give state prosecutors a green light to bring charges when a defendant has received a federal pardon. Legal experts say the omission was inadvertent, but that could have big implications for New York’s ability to investigate and prosecute the president’s associates.

It’s quirky, too, because a presidential pardon can’t waive state crimes.

“If the president were to issue a pardon, it would seem like justice would be served by (Manafort) being prosecuted for state crimes. The state law, as it is currently written, doesn’t allow for that,” said former Manhattan prosecutor Rebecca Roiphe, now a professor at New York Law School.

New York state Attorney General Letitia James said Tuesday that she’s reached agreements with legislative leaders on a bill revising the double jeopardy law. She said she expects a vote within the coming weeks.

Vance said in a statement that his office started investigating Manafort in March 2017 and that the probe “yielded serious criminal charges for which the defendant has not been held accountable.”

“No one is beyond the law in New York,” Vance said.

Manafort is due to serve more than seven years in prison for his federal convictions, but Trump has raised the prospect of offering him a “get out of jail free” card. The president has repeatedly defended Manafort and floated the idea of granting him a pardon.

New York’s 16-count indictment alleges Manafort gave false and misleading information in applying for residential mortgage loans. It says that the fraud started in December 2015 and continued until three days before Trump’s inauguration in 2017.

Manafort is also charged with falsifying business records and conspiracy.

Stephen Gillers, a law professor at New York University, said Vance’s case still has a good chance of succeeding under the current law because the mortgage charges are state crimes distinct from the federal allegations.

“Vance has left himself a fair amount of breathing space to argue that his prosecution does not violate the statute because the crimes he’s prosecuting are sufficiently different from the crimes the United States prosecuted,” Gillers said.

Former Attorney General Eric Schneiderman, a Democrat, first raised the alarm about the double jeopardy loophole last year. Despite support from Democratic Gov. Andrew Cuomo, lawmakers failed to revise the law. Schneiderman resigned just weeks later after being accused of assaulting former girlfriends.

___ Michael Sisak reported from New York.