In light of recent pardons by President Trump, New York Attorney General Barbara Underwood has issued a call to arms in the hope of destroying one of best tools against legal persecution and tyranny. Current New York laws prevent people being prosecuted for the same crime twice without new evidence being introduced, but Underwood is campaigning to remove these protections from the New York state law books.
It would appear that New York liberals are about to unleash a Kafka inspired nightmare upon their citizens. Double jeopardy law prevents harassment and acts as a barrier against the tyranny of powerful elites. Imagine a world where you can be tried for a crime, found innocent (or even pardoned), and then be tried again for the same offense… because the outcome was not the one wished for by those in power. This dark vision could be the fate of New York if AG Underwood gets her way.
While the Fifth Amendment guarantees us protections against double jeopardy, there’s a hitch. Under our federal system of dual sovereignty, a person can be prosecuted at the federal level, and again at the state level, all for the same crime, without violating the Fifth Amendment. That’s how the Supreme Court ruled in 1985’s Heath v. Alabama.
From the time of the founding until the federal government’s explosive growth, there wasn’t much tension in this area. States had plenary law-making powers and concerned themselves with almost all law enforcement and civil regulations, while Congress’ powers were “limited and enumerated.” For some perspective, in 1950, the Code of Federal Regulations had about 10,000 pages. It now has about 190,000 pages all Americans are expected to be in compliance with.
Underwood writes of Trump’s recent pardons:
“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.”
How convenient that she is a lawyer and not a math teacher, as her understanding of sequence appears somewhat flawed. Underwood’s lack of numeric skills unfortunately missed out the presidential pardon of Jack Johnson (who falls between Libby and D’Souza). Or is it that she just wants to do away with double jeopardy for those pardons with which she personally disagrees?
This is the beginning of the slippery slope.
By not mentioning Jack Johnson, Underwood exposes her true desire: that those pardons she disagrees with should be retried and found guilty all over again. But who is to decide which unfortunate souls should face the jury once more? If this were not political gameplaying, then all those excused by the president should face the system, without exception. If it were just those offenders she disagrees with, then she is de facto acting as a judge herself.
Who’s to Judge?
The core accusation is that President Trump is pardoning people who shouldn’t be pardoned because they may support him. To some extent this could be true, but only if we ignore the troublesome Jack Johnson once again. Johnson is long dead and cannot raise funds, speak from a pulpit, or even cast a vote.
Could it be argued that pardoning Johnson would encourage other people to vote for Trump? Sure. But then we should also look at the roller coaster of pardonings that former President Obama seemed determined to make a signature of his legacy.
In his eight years in office, Obama granted Executive Clemency to 1,927 people; a significantly larger number than each of the previous ten presidents. Many of Obama’s pardons or commutations were for cocaine offenses including dealing, supplying, and trafficking. During his last few days in office, he went into overdrive. He commuted 330 (mostly drug-related) sentences on his last day. Should these lucky souls face the courts again?
And what of Chelsea Manning (formerly Bradley Manning), who was convicted of espionage after disclosing military information to Wikileaks? A sentence that was due to run until 2045 was commuted by Obama; there are many Americans who would be only too happy to have her face again the initial charges of “aiding an enemy” in a more compliant court.
Make no mistake, this is tyranny waiting to happen. If this legislation goes forward, it will be conservatives who face the judges. These proto-dictators seek to punish, and punish ad infinitum, those who had the temerity to express differing political views. If we allow this to happen, it will not just be “one more trial,” it will be a Kafkaesque nightmare of endless trials and verdicts until the “politically correct” verdict is decreed. The fact that Underwood holds these views as the Attorney General of New York should make us all sleep less soundly.