‘Nothing Changes’: NY AG Will Remain Check On Trump Without Schneiderman

TPM Illustration. Photo by Getty Images/ Saul Loeb
May 8, 2018 3:02 p.m.

Monday night saw the spectacular implosion of New York Democratic Attorney General Eric Schneiderman’s career over allegations that he physically assaulted women. So what will become of the inquiries into the President’s associates and administration initiated by this self-proclaimed champion of the anti-Trump resistance?

Not a whole lot, legal experts tell TPM.

In the immediate term, solicitor general Barbara Underwood will become acting attorney general. Underwood and the large team of career prosecutors below her will continue to carry out the work in which the office was already engaged. State lawmakers are expected to appoint a replacement before the September Democratic primary, but that replacement is likely to be a Democrat, given the party’s majority in the legislature.

“Absolutely nothing changes,” James Tierney, former director of the National State Attorney General Program and lecturer at Harvard University, told TPM.

“He’s got a great staff,” Tierney continued. “Nothing is going to change. There’s no legal difference.”

Underwood put out a statement to the same effect, promising that “our work continues without interruption.”

Schneiderman’s political demise was brought about by a chilling, strongly-corroborated New Yorker report in which several of his former girlfriends described being slapped and choked by the state’s top law enforcement officer, often while he was heavily intoxicated. He resigned within hours of its publication, “strongly” contesting the allegations but acknowledging they rendered him unable to “effectively” lead his office’s work.

That work included taking more than 100 legal or administrative actions against the Trump administration and congressional Republicans. It also meant serving as a possible bulwark against the President should he decide to pardon associates implicated in Special Counsel Robert Mueller’s investigation into Russia’s 2016 election interference.

The biggest assist on that front was Schneiderman’s cooperation with Mueller’s team on a money laundering investigation into indicted Trump campaign chairman Paul Manafort. But Schneiderman was also interviewing tenants of properties owned by Trump son-in-law and White House adviser Jared Kushner over allegations that the Kushner family real estate was filing false tenant documents.

Most recently, in mid-April, Schneiderman launched an effort to end-run any federal pardons Trump may issue. In a letter, he urged New York officials to change state law to exempt New York’s double jeopardy law from cases involving presidential pardons. The proposed change would empower Schneiderman and other local prosecutors to bring state criminal charges against any Trump aides who are absolved by the President.

But the decision to actually alter the law rests with Gov. Andrew Cuomo (D) and the state legislature, not the attorney general’s office. And the information shared between Schneiderman’s office and Mueller’s team about Manafort isn’t going anywhere.

“You have to stop making it about him,” Tierney, the expert on attorneys general, said on the pardons question. “These are institutions. They had a problem with New York law so they went to the legislature with it.”

The attorney general and solicitor general offices also work closely together, meaning Underwood is likely aware of any Mueller-adjacent matters Schneiderman was working on, according to Fordham Law professor Jed Shugerman.

“If and when Schneiderman was coordinating with Mueller, it would be likely that he was also bringing Underwood into those conversations,” Shugerman said.

Shugerman added that Underwood’s interim position made it contingent on Cuomo to “step up” and push for legislation altering the double jeopardy law to ensure that “New York’s criminal procedural laws can’t be abused to allow Trump to obstruct justice with pardons.”

Cuomo’s office did not immediately respond to TPM’s request for comment.

Underwood’s move into the acting AG role was cheered by New York legal observers, including Schneiderman’s longtime spokeswoman. Prior to her 11 years as solicitor general, Underwood served as a prosecutor for the Brooklyn, Queens and Manhattan district attorneys, and argued cases before the Supreme Court on behalf of the Clinton administration.

But attention has already shifted to who could take her place.

Republican Manny Alicandro launched his campaign on Monday, while Democratic candidates floated for the role include Rep. Kathleen Rice (D-NY), former City Council Member Dan Garodnick, political activist Zephyr Teachout, and New York City Public Advocate Tish James.

Preet Bharara, former U.S. attorney for the Southern District of New York, is an early favorite, but he has repeatedly claimed to have no interest in going into politics, telling the New York Times Magazine late last year that the thought of calling acquaintances to raise funds “doesn’t float my boat.”

Whoever becomes attorney general in November is likely to be a Democrat, and, given the prominence of the New York office on the national stage, is likely to be a highly visible opponent of Trump’s words, actions and policies.

Schneiderman may have been a particularly scrappy and energetic legal opponent of this White House, or, as Tierney put it, may have “shamelessly self-aggrandized himself.”

But as long as the party in power stays the same, the individual officeholder matters less than the institution.

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