The New York pardon loophole law, Criminal Procedure Law §40.51, lets state prosecutors bring a case against someone who received a presidential pardon or other clemency, but only if they can show, to a clear-and-convincing standard, that the person fits one of five listed ties to the president who granted it. It does not override the pardon itself, which never covered state crimes; it removes a New York procedural bar that could otherwise have blocked a second case. The law names no individual, and nothing here suggests that any particular person is subject to it.
Where it stands: Then-Gov. Andrew Cuomo signed the bill on Oct. 16, 2019, as Chapter 374 of that year’s laws, and it took effect immediately. The sources reviewed for this article report no court decision applying it. For the broader question of state charges after a pardon, see our earlier explainer, Can a pardon stop state charges?
What is the New York pardon loophole law?
It is an exception to New York’s own double jeopardy statute. Double jeopardy is the rule that a person cannot be tried twice for the same offense.
The U.S. Constitution does not stop a state from following a federal case. In Gamble v. United States, decided in 2019, the justices repeated that “a crime under one sovereign’s laws is not “the same offence” as a crime under the laws of another sovereign.” That is the dual sovereignty doctrine.
New York, however, chose to give defendants more protection than the Constitution requires. Its general previous-prosecution statute, cited in a 2018 Supreme Court brief as “N.Y. Code Crim. Proc. § 40.20(2)(f),” limits a state case after one in another jurisdiction. Attorney General Letitia James argued that this created “an unintended loophole” that could stop the state from pursuing justice “in cases where the president has used his or her pardon power for corrupt purposes.” CPL 40.51 was written to close it. The federal pardon was never the obstacle: the pardon power reaches only federal offenses, and the Constitution Annotated says “state criminal offenses” are not covered.
What are the five conditions in CPL 40.51?
Prosecutors must show one of five links, and the bill sets the standard of proof: “the people demonstrate, by clear and convincing evidence, that” the person fits a category.
| # | Connection to the president who granted clemency | Key words in the bill |
|---|---|---|
| 1 | Served on the White House staff or in the president’s executive office, or held a post needing Senate confirmation (acting or confirmed), while that president was in office; or was on the payroll of, or an agent for, the election or transition operation or a firm under the president’s ownership or control | “in the executive office of the president, or in an acting or” confirmed capacity |
| 2 | Was a relative of the president at the time of the grant | “related by consanguinity or affinity” within the sixth degree |
| 3 | Shares accomplice or conspiracy liability for the offense with someone in group 1 or 2 | “bears accessorial liability” |
| 4 | The grant helped the president avoid possible prosecution, or the president knowingly benefited from the offense or from the recipient | “aided in avoiding potential” prosecution |
| 5 | Has or had information material to any criminal or civil investigation of the president or of people in groups 1-3 | “possessed or possesses information material to the” determination |
The categories are about relationships, not guilt. Meeting one does not mean a person did anything unlawful; it means only that New York’s previous-prosecution bar would not shield them if state prosecutors otherwise had a case under state law.
When does the law apply, and to whom?
The bill took effect on signing. Its second section extends it to offenses committed before that day as well, as long as the proceedings described in CPL 40.30 had not yet “occurred as of such date.”
In practice, NPR reported when the Assembly voted that “The law would not apply to anyone who has been tried already or entered a plea.” Double jeopardy, NPR explained, “kicks in only after a jury is convened or when a defendant enters a plea.” Just Security made the same timing point using Supreme Court precedent: “In 1978, the U.S. Supreme Court held that jeopardy attaches once a jury is sworn in.”
That timing matters for pardons granted before any federal charge or trial. If no federal jeopardy ever attached, a state’s previous-prosecution bar keyed to an earlier prosecution may never come into play at all, and CPL 40.51 may not be needed. That is a general reading of the statutes, not a court holding.
Who pushed the law, and why?
The bill came from the Attorney General’s office. The Senate version, S4572, was “Introduced by Sen. KAMINSKY — (at request of the Attorney General),” and the final law was carried by state Sen. Todd Kaminsky and Democratic Assemblyman Joseph Lentol.
James said at the signing: “This critical new law closes a gaping loophole that could have allowed any president to abuse the presidential pardon power by unfairly granting a pardon to a family member or close associate and possibly allow that individual to evade justice altogether.” Cuomo said: “No one is above the law and New York will not turn a blind eye to criminality, no matter who seeks to protect them.”
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Lentol framed it as institutional, not personal. “It doesn’t have anything to do with this president. It has to do with presidential power, period,” he told NPR. The AG’s office called the signing “the thirteenth exception to the “double jeopardy” law enacted by the State Legislature.”
What did critics of the law say?
Republican critics in Albany cast it as a shot at Trump and warned that it could cut both ways. The Assembly passed the measure 90-52, NPR reported.
Assemblyman Andy Goodell, a Republican, said the bill was tantamount to “a poke in the eye” to Trump. On the floor, he asked what would stop federal prosecutors from charging people who had received state pardons from Cuomo. “Isn’t this opening Pandora’s box?” Goodell said. “This is a two-way street.”
His question points to a real feature of dual sovereignty: the rule runs in both directions, and federal prosecutors are not bound by a governor’s pardon any more than states are bound by a president’s. Our state-by-state guide shows how other states handle successive cases, and the pardon tracker lists the federal grants themselves.
The Assembly’s record lists the bill’s final legislative step as “10/16/2019 SIGNED CHAP.374.”
Frequently Asked Questions
What is CPL 40.51 in New York?
It is a section of the New York Criminal Procedure Law, added in 2019, that allows a state prosecution of someone who received presidential clemency if prosecutors meet a clear and convincing evidence standard on any of the listed connections to the president who granted it.
Does New York law override a presidential pardon?
No. New York crimes were never within the clemency power of a president, which is limited to federal offenses. CPL 40.51 removes a New York statutory double jeopardy bar in specified cases; it does not touch the federal pardon.
Who does the New York pardon loophole law apply to?
People with one of five ties to the pardoning president: executive staff, Senate-confirmed officials, campaign or business agents, relatives, co-conspirators or accomplices of those people, cases where the president benefited, and people with information material to an investigation of the president.
Has CPL 40.51 been used in court?
The sources reviewed for this article report no court decision applying it as of late October 2026.
Why did Republicans oppose the New York law?
Republican Assemblyman Andy Goodell called it a poke in the eye to Trump and warned that federal prosecutors could respond by charging people pardoned by New York governors.
Sources
- Bill S04572 (2019-2020): summary, actions and text — New York State Assembly, signed October 16, 2019
- Attorney General James Applauds Signing Of Double Jeopardy Law — Office of the New York State Attorney General, October 16, 2019
- New York Assembly Passes Bill Closing ‘Double Jeopardy’ Loophole As Rebuke To Trump — NPR (via WRVO Public Media), May 21, 2019
- Brief for Texas et al. as Amici Curiae, Gamble v. United States (No. 17-646) — Supreme Court of the United States (docket), November 2018
- ArtII.S2.C1.3.1 Overview of Pardon Power (Constitution Annotated) — Congressional Research Service, via LII, accessed October 2026
- Gamble v. United States, No. 17-646 — Supreme Court of the United States, June 17, 2019
- The States Can Trump Trump’s Pardons — Just Security (Jed Shugerman), September 5, 2017
This article is news reporting and analysis based on the public sources listed above, as they stood on the dates shown. Where officials, lawmakers or analysts disagree, including on whether an action is lawful, their positions are attributed to them; Donald Trump Class Action is not a court and nothing here is legal advice. Facts in a developing story can change.