The New York Times and MSNBC are reporting that Manhattan DA Cyrus Vance (infamous for not prosecuting the Trump family in years past) has unsealed an indictment against Paul Manafort.
Per the Times story, Manafort has been charged with 16 offenses in NY — fraud, tax crimes and other business crimes -- a prosecution which would not be subject to Presidential pardon.
www.nytimes.com/...
Manafort’s attorneys will surely challenge these charges as precluded by double jeopardy. It is worth noting that there has been reporting this week that New York legislators have reached agreement on a change to NY laws that would eliminate what’s being described as a “double jeopardy loophole.” That “loophole” would prevent prosecuting someone for criminal conduct if the individual has received a pardon from the President for the conduct.
New York law actually makes it very hard to prosecute if someone has already been convicted even in another jurisdiction for the same conduct and crimes. There’s an exception if they were acquitted based on failure to prove some element that is not part of NY law (not applicable here) or if the there are statutory elements of the crimes that are not only different but aimed at preventing different harm (seems unlikely here). There’s also a broad exception to double jeopardy if the if the offense have different elements and the acts involved are distinguishable. I can’t offer any great insight here, but NY prosecutors are telling the press that they think they will overcome any double jeopardy claim.
It may be that NY prosecutors are looking to CPL § 40.20 (i) which applies to conspiracies regarding tax evasion.
Legislators have been concerned about the double jeopardy provision because the state would be barred from pursuing someone pardoned by Trump, even if NY could have pursued the crime on its own but for the federal prosecution. The new legislation is, in fact, aimed specifically at people who have some connection to this or future Presidents. I would say it’s not 100% certain, but there’s a strong argument that the changes cannot be used to apply to Manafort, since jeopardy has already attached. The law could be used to prevent double jeopardy arguments against future defendants, perhaps the Trump family.
I’m still thinking this through, but it seems to me that if current NY law would allow the Manafort prosecution, the crimes must be sufficiently different that any Presidential pardon would not help Manafort. The change seems mainly aimed at opening up prosecutions to overcome double jeopardy when the potential defendant has been corruptly pardoned.