Eric Schneiderman’s sudden disgraced resignation as New York’s attorney general doesn’t mean that all or even any of his political investigations and lawsuits will go away with him. The civil and criminal cases he filed and those that still may be pending in the pipeline – against Donald Trump, Michael Cohen, Paul Manafort, or Jared Kushner; against the Trump administration’s travel ban, its environmental policies, its military transgender rules and its net neutrality position – almost certainly will continue in Schneiderman’s absence, especially in the short term. What happens beyond that is where uncertainties start to come into play.
We should, however, expect delays in whatever major decisions New York’s next attorney general makes in the course of being the state’s top law enforcement official. That’s natural with a change of leadership or uncertainty about who will lead. (By state law, Schneiderman’s immediate successor is the state’s solicitor general, Barbara Underwood.) And that, along with a dose of schadenfreude, explains why so many members of Team Trump were crowing Monday evening in those crowded hours between The New Yorker’s publication of a bombshell about Schneiderman’s alleged physical abuse of women and his terse resignation. Suddenly gone is a key face of state opposition to Trump.
Underwood, a Democrat, is a former prosecutor, a former member of the Justice Department, and she clerked for the late U.S. Supreme Court justice Thurgood Marshall. Underwood will either serve as Schneiderman’s replacement through this November’s election, when a permanent A.G. will be chosen, or she will be replaced between now and then by the Democratic-controlled state legislature. Who knows? Perhaps she’ll join the growing list of potential candidates who want the job badly enough to run for it in November.
Let’s be clear: there is no reason to think that Underwood is going to come in to her new job, sit down with New York state attorneys and investigators, and tell them that she wants them to stop doing their jobs. That may be the fantasy embraced by Kellyanne Conway or Donald Trump, Jr., but it is not how the office of attorney general works. If Underwood tried this – if, say, she tried today to call off investigators probing Paul Manafort’s real estate deals or if she tried to remove the state from its immigration lawsuit against the Trump administration – I predict there would be a revolt within her office. And most of us would side with the revolutionaries.
When it comes to the Trump administration we’ll continue the work that Eric started, is the mantra we’ll likely hear today and tomorrow and maybe even for the next few weeks. And by then perhaps we’ll have answers to some of the key questions raised by Schneiderman’s sudden departure. The answers to those questions are going to tell us whether members of Team Trump celebrated too early Monday night or whether Schneiderman’s resignation really does signal a cresting of the tide in New York’s battle with this administration and the policies and people who represent it.
Some items to consider over the next several weeks: Is Underwood going to serve through the fall? And what will she do if her staff comes to her next month and says: We believe we have the evidence to initiative a state criminal prosecution against Cohen (or Kushner or Manafort)? Will she press state lawmakers for a change in the law that would blunt the impact of presidential pardons for Trump’s camp followers? Is there any reason to think she’ll try to withdraw New York from any or all of its pending civil litigation against the Justice Department and White House?
To fairly assess how good the Schneiderman news is for the president and Cohen (and for Kushner and Manafort for that matter), we would have to ask the same questions of whomever state legislators pick as Underwood’s replacement, if Albany chooses that path. And who else wants the job? Is Preet Bharara, the fabled former federal prosecutor from the Southern District, ready to take his act upstate? (Betcha Conway and Trump, Jr. wouldn’t celebrate that.) There is a long list of qualified candidates who might emerge from Schneiderman’s shadow. Until we know who prevails, it’s pointless to make any long-term predictions.
There is a final question that ought to be asked and answered now that Schneiderman is gone. It’s a big-picture one. Assuming that Democrats retain control of the office, what kind of office do they have there? What kind of office do they want to have? If it is a healthy one, where people take seriously their professional and ethical obligations, where the cult of personality is at a minimum, it shouldn’t matter much who the attorney general is during any given administration. The letter of the law and the strength of the evidence should guide the shop.
Until Monday afternoon, you could have made a strong case that Eric Schneiderman ran that kind of office, the best kind of law enforcement office, which is why he and his team presented such a powerful contrast to the Trump administration. The fact that he’s come undone in such spectacular fashion doesn’t mean that the work of New York’s lawyers and investigators has to come undone as well. We should have faith (or at least a reasonable expectation mixed with some hope) that Barbara Underwood will continue to take the investigation of all the president’s men where the facts and the law say it should go.