TV Brackets United Kinkdom / Flickr robert mueller...
TV Brackets United Kinkdom / Flickr

According to this article at from reporter Josh Dawsey:

Special counsel Robert Mueller’s team is working with New York Attorney General Eric Schneiderman on its investigation into Paul Manafort and his financial transactions, according to several people familiar with the matter.

The article is short, but reveals some interesting points. One, this report comes out shortly after Trump’s pardon of Joe Arpaio and reports of discussions between Tr*mp and his advisors about potential pardons for anyone indicted in the Tr*mp-Russia investigation. Two, Mueller’s team has been leak-proof throughout the investigation. Three, Dawsey cites “several sources.” So either this leak came from Schneiderman’s office. Or…. Mueller has sent a signal to Manafort, Flynn, et al, that relying on a pardon from Tr*mp may not be such a good idea. (It’s not a strategy they would likely be pursuing anyway, but this certainly tightens the screws.)

Dawsey appeared via phone on Rachel Maddow’s show, and then Lawrence O’Donnell followed up with Fordham law professor Jed Shugerman, who made some interesting points. As we know, presidential pardons don’t apply to state crimes. So, popular thinking is that someone like AG Scheiderman could just pursue charges in the state courts of New York, even if Tr*mp pardoned those indicted or found guilty.

It’s not quite that simple, according to Shugerman. For one, defendants could still invoke the 5th Amendment if the state of New York filed its own charges after the feds did, and the defendants were pardoned—because the defendants could invoke the 5th Amendment precisely because they were now facing state charges. Of course, you can’t be pardoned for future crimes, so if a defendant lied—whether in state court, or before Congress—and evidence emerged to prove that, he could face charges for perjury.

According to Shugerman (who is the second guest to speak), NY state also has a “double jeopardy” statute that in some cases prevents a second state prosecution once a federal investigation is underway, depending on the status of the federal investigation. So the timing of AG Schneiderman’s involvement in and coordination with Special Counsel Mueller’s investigation is crucial. States typically defer to the feds when it comes to bringing indictments. But as Shugerman, and then O’Donnell both note at the end of the segment, it’s possible—and perhaps unprecedented—that because of Tr*mp’s threatened pardons, a federal special counsel could actually defer to a state attorney general and allow the state to bring indictments first.

So if anyone from Tr*mp’s campaign, the Tr*mp Organization, the transition team, or the administration (okay, it’s mostly the same bunch) committed crimes in the state of New York, the idea that they could simply wait out Mueller’s investigation doesn’t work any more. It’s not quite as simple as many people think, but it sounds like Mueller is taking every precaution to make sure that Tr*mp’s pardon threat isn’t going to alleviate any pressure on Manafort or anyone else.

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This is a Creative Commons article. The original version of this article appeared here.


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