Knowledge of, faith in and fidelity to The United States Constitution has come a long way in New York State. From John Jay and Alexander Hamilton, two drafter/shepherds of the Constitution, to Andrew Cuomo and Letitia James. Steeply downhill it appears, as the state’s governor and attorney general pursue a rare trifecta in violation of the spirit, if not letter, of our national charter. In their effort to assure that Paul Manafort remains a felon and serves time, when and if Trump pardons his federal high crimes, New York’s chief executive and legal officer have reputedly cut a deal with the legislature to alter New York’s double jeopardy prohibition. This would purportedly allow for Manafort’s prosecution for some of the same conduct that resulted in several of Manafort’s federal convictions.
That would clearly violate the spirit of the Constitution’s 5th amendment prohibition of being “twice put in jeopardy of life and limb ” for “the same offense”. It also looks, feels, smells and tastes like both an ex post facto law and a bill of attainder. Nevertheless, New York’s elected will eagerly step in it.
When amending the Constitution with The Bill of Rights, the framers did not guarantee residents of the new republic that their states could not deprive them of any of those bedrock rights, such as free speech, press, religion, due process etc. That didn’t happen until 1868 and passage of the 14th amendment. But the Constitution, before any amendments, even one through ten, forbade the states from doing a very small number of very bad and unjust things, popular in Jolly Old England. Two of those were attainder and ex post facto enactments. The latter occurs when a new law makes illegal (or permits prosecution for) something that would not have been illegal (or would not have been prosecutable) when the conduct took place. Bills of attainder essentially target a specific person for prosecution, defining her or what he has done as illegal/criminal. And while the Cuomo/James backed bill, that the New York legislature is poised to pass, can probably survive constitutional challenge, the spirit of, and reason for, all three constitutional protections will have been violated.
There are no tears being shed, at least none here at HL, for Paul Manafort, who otherwise has led a perfidious, mercenary and unpatriotic life. But the Constitution and its protection of personal liberties is generally most important and fidelity to them most urgent when protecting scumbags. When we uphold the right of Nazis to march through Skokie and that of Westboro Baptists to carry anti-Catholic and homophobic signs, while protesting near military funerals, we honor the Constitution and make sure it will be there to protect us when we need it. Few of us get through life without that need. Well, same for Mr. Manafort. The spectacle of New York’s elected plowing forward with this double jeopardy dilution, while showing such little regard for the Constitution or recognition of the future consequence of their actions, makes HL long for Hamilton and especially for Jay. He helped write the Constitution, co-authored The Federalist Papers, was our first Chief Justice and quit that job to become New York’s governor. The stature of the job and wisdom of its holders certainly have come a long way.