Schneiderman out. What happens next?

“What happens to Mueller’s evidence if Trump goes on firing spree?” I wrote this post on Friday for Slate  and I emphasized the role of NY Attorney General Eric Schneiderman and reports of his coordination with Mueller. Here’s a post-Schneiderman-resignation update on this question. The bottom line is that the office is in great hands with Solicitor General Barbara Underwood, who has now become Acting AG.

NY district attorneys operate independently from the NY Attorney General. Mueller can share information with Manhattan, Queens, and Brooklyn DAs, as I indicated in the Slate piece. The problem is that Cyrus Vance, Jr., is Manhattan DA, and he has major Trump corruption issues. Vance was investigating blatant fraud by Ivanka and Don Jr. at Trump SoHo, but they (and Marc Kasowitz) bought him off in 2012. Vance also blew off the Harvey Weinstein investigation. Vance has no credibility to be aggressive. Trumpers will say, with a valid basis, “He’s just trying to get back in good liberal graces after bad publicity.” Vance is untrustworthy. He was re-elected only because these scandals exploded after he won Dem nomination, and he lacked integrity to bow out.

This is why the process for replacing Schneiderman by the NY legislature is so important. Barbara Underwood was the Solicitor General, and she now becomes acting AG, but maybe for a short period of time. Article III, Section 41 of the Laws of New York states: “When a vacancy occurs or exists, other than by removal, in the office of comptroller or attorney-general, or a resignation of either such officer to take effect at any future day shall have been made while the legislature is in session, the two houses thereof, by joint ballot, shall appoint a person to fill such actual or prospective vacancy.” (H/t Conor Lynch).

The state legislature has a limited number of days remaining in its session, something like just the next month. The role of the New York AG is vital to New York law enforcement in normal times, but it’s urgent now. This investigation needs a reputable, trustworthy official with centralized control. Barbara Underwood presumably remains in the office until the legislature chooses a replacement, and she is an excellent fit for this role. Check out her stellar background here: law clerk for Justice Thurgood Marshall; former Yale Law professor; extensive experience in NY DA’s offices in three different boroughs; principal deputy SG in the Clinton administration, then becoming the first female SG (correction: in the Bush administration until Ted Olson was confirmed); then worked in the U.S. Attorney’s Office for EDNY (based in Brooklyn), and then New York Solicitor General. She is an improvement on Schneiderman in so many ways.

Preet Bharara also is a fine choice. But will the GOP state Senate block him for that reason? But if they obstruct all other replacements, Underwood would continue as Acting AG and is definitely up to the task. And considering her more direct experience with both New York state law and the federal DOJ, she may be the best choice.

Update: I want to emphasize how perfect Underwood’s resume is if you were trying to design experience for coordinating an investigation between New York state prosecutors, main DOJ, and the U.S. Attorney’s Office for the Southern District of New York. My understanding is that the NY Attorney General’s office works *very* closely with the SG’s office. If Mueller had been coordinating/sharing evidence with Schneiderman, Underwood was probably aware and involved.

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and political ambition (a cause of mass incarceration), and "The Imaginary Unitary Executive," on the myths and history of presidential power in America. View all posts by Jed Shugerman