by Bob Barr
You can’t be tried twice for the same offense. The concept of being free from “double jeopardy” is a right that has been recognized in law for thousands of years. The ancient Greek, Roman and Jewish legal systems incorporated the principle of double jeopardy in their judicial codes.
So fundamental has this right been viewed, that it survived even the ravages visited upon the rule of law during the Dark Ages. The right of a person to be free from being “twice put in jeopardy of life or limb” found its way into the core of our Bill of Rights.
Now, in the latest example of a liberal state government placing its hatred of President Trump above respect for long-standing legal tradition, the New York General Assembly has decided to weaken the protection against double jeopardy heretofore enjoyed by those within its borders.
First, a note of background.
In our federal system of governing, power is shared between the federal and the several state governments, with each constituting a separate and legal “sovereign” empowered and entitled to enforce its code of criminal law; even if doing so places an individual at risk of a successive prosecution for the same offense. Notwithstanding what appears on its face to be an exercise in “double jeopardy,” the U.S. Supreme Court has long permitted the practice (but a case currently before the High Court for decision could change that).
However, recognizing the fundamental unfairness resulting from this application of “dual sovereignty,” many states, including New York, have enacted laws that prevent state prosecutors from bringing criminal charges against a person if that individual had previously been convicted of the offense by the federal government. But last week, in a fit of partisan pique, New York’s heavily Democratic legislature decided to limit that protection by passing a measure that Gov. Andrew Cuomo — who wears his hatred of Trump like a red badge of courage — is certain to sign into law.
New York’s freshman Attorney General Letitia James, whose office helped draft the legislation, was quick to publicly praise the legislature’s action in passing this “exception” to the state’s double jeopardy protection law. So proud are Cuomo and company of taking this swipe at Trump, that they did not try in the slightest to disguise the animus underlying the measure.
Simply put, the legislation permits prosecutors in the Empire States to bring criminal charges against a person already convicted under federal law — but who otherwise would be shielded from state prosecution in New York — if President Trump had pardoned them for the offense or had commuted their sentence. Lest there be any misunderstanding the anti-Trump goal of the legislation, the bill’s title erases any possible confusion — “Previous Prosecution: Presidential Reprieve, Pardon, or Other Form of Clemency.”
Hateful as are the Empire State’s sentiments toward Donald Trump, they pale to at least a degree when compared to the view held by the state’s top law enforcement official toward the National Rifle Association. Shortly before her election as New York attorney general last November, Letitia James described the NRA in an interview as a “terrorist organization.” Such characterization is significant, considering the Association is legally chartered under New York law as a not-for-profit corporation. James’ office already has launched an investigation attacking the NRA’s corporate existence; even as Cuomo is directing that insurance companies and banks operating lawfully in New York back way from doing business with the NRA.
The lesson in all this is crystal clear. If you are a person or organization out of favor with those wielding power in New York, the government will employ every ounce of those powers to put you out of business. And, as seen now with regard to anyone who might in the future benefit by being forgiven by Donald Trump, New York will go so far as literally to change its laws in order to punish you.
Bob Barr (@BobBarr) represented Georgia in the U.S. House of Representatives from 1995 to 2003. He currently serves as president and CEO of the Law Enforcement Education Foundation.