Underwood for SG! (Reply to David Cay Johnston)

Eric Schneiderman’s resignation on Tuesday following allegations that he has physically abused multiple women served justice. It also opened the door to one of the most accomplished but overlooked women in American law, New York solicitor general Barbara Underwood, to become the state’s acting attorney general. This position is crucial—not just for New York, but for the entire nation—and she is the right person for this job.

After David Cay Johnston’s criticism of Underwood’s role in a case in 2011, I’m adding a defense below. Also a disclosure: I wrote these posts before my friend and colleague Zephyr Teachout declared her interest in running for the office. I think she’d be great, but in the meantime, Underwood should complete Schneiderman’s term with the formal approval of the legislature, and then she should decide if she wants to continue as SG or AG.

First, a summary: I’ve written extensively about how the New York state attorney general’s office could play a vital role in supporting the investigative work of Special Counsel Robert Mueller should President Donald Trump attempt to sabotage the probe with a series of firings or pardons. In that event, New York’s AG’s office could theoretically easily take over the investigation in a way that would be impossible for Trump to sabotage, so long as the right leadership is in place and assuming Mueller is laying down the groundwork for cooperation in advance.

Underwood’s experience is perfect if you were, hypothetically, trying to coordinate an investigation between New York state prosecutors, the “main” Department of Justice in D.C., and the U.S. Attorney’s Office for the Southern District of New York. The New York Attorney General’s office works closely with the solicitor general’s office. In fact, Underwood was appointed by Cuomo while he was attorney general in 2007. If Mueller had been coordinating and sharing evidence with Schneiderman, Underwood would have already probably been aware and involved.

According to state law, the two houses of the New York legislature must now appoint a person to fill the vacancy in a joint vote. The state legislature has a limited number of days remaining in its session to do this, about one month. The role of the New York attorney general is vital to New York law enforcement in normal times, but it’s urgent now. Any possible investigation of Trump World working hand in hand with the feds needs a reputable, trustworthy official with centralized control. Again, Barbara Underwood is the perfect fit. She would presumably remain in the office unless and until the legislature chooses a replacement. It makes the most sense for the legislature to allow her to finish Schneiderman’s term until this November’s election.

You can read her stellar background here: law clerk for Justice Thurgood Marshall; former Yale Law professor; extensive experience in New York DA’s offices in three different boroughs; principal deputy solicitor general in the Clinton administration, then acting solicitor general—the first woman solicitor general—in the Bush administration until Ted Olson was confirmed in June 2001. Then she worked in the U.S. Attorney’s Office for the Eastern District of New York (based in Brooklyn). In 2007, Andrew Cuomo, then serving as attorney general, appointed her state solicitor general. She has been an effective solicitor general for more than a decade.

She has argued 20 cases before the U.S. Supreme Court, a remarkable number of which are high-profile cases involving tobacco, disability access, federalism, climate change and—wait for it— racial housing discrimination as well as federal campaign finance law. Yes, an area of criminal law directly related to the Michael Cohen investigation in New York. She is an improvement on Schneiderman in so many ways, and so much more appropriate for this role at this crucial moment.

Early today, journalist David Cay Johnston raised questions about Underwood’s legal defense of the state’s subsidy for constructing a microchip plant, citing his 2011 column. Johnston may be right on principle that the legislature should not have given the subsidy, but I think he is not being fair to Underwood’s role as Solicitor General. She was not appointed legislator, governor, or judge. Her role was to represent the state and its legislative choices. If the subsidy were a clear violation of the law, we could raise questions about what a Solicitor General should do. But it’s important to note that New York’s highest court, by a 5-2 vote, sided with Underwood and found the state subsidy legal in Bordeleau v. New York.

Article VII, § 8 (1) of the State Constitution states:

[t]he money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking; nor shall the credit of the state be given or loaned to or in aid of any individual, or public or private corporation or association, or private undertaking.

This clause was introduced into the New York State constitution in 1846, and I actually wrote a whole chapter in my book on that constitutional convention. Johnston is right that this clause was in reaction to crony capitalism — overspending on railroads, putting New York in severe debt and perilously close to default.  As a matter of originalism and principle, New York courts should be strict about this rule. But on the other hand, New York law also commands deference to the state legislature, rather than originalist judicial activism:

[The plaintiff’s] “burden is a heavy one” (Schulz v State of New York, 84 N.Y.2d 231, 241 [1994] [Schulz I]). It is well established that “enactments of the Legislature—a coequal branch of government—enjoy a strong presumption of constitutionality” (id.). In this case, plaintiffs’ burden is “exceedingly strong” because they challenge public expenditures designed in the public interest (Wein v State of New York, 39 N.Y.2d 136, 145 [1976]). Indeed, we have recognized the need for deference involving “public funding programs essential to addressing the problems of modern life, unless such programs are `patently illegal'” (Schulz I, 84 NY2d at 241).

Furthermore, the Court explained how the state of New York created a system to avoid the risks of debt burdens, in compliance with the state constitution:

With an apparent goal to “insulate the State from the burden of long-term debt,” the Legislature, beginning in 1921, created “legally separate public benefit corporations, known as public authorities, to discharge particular functions” (Schulz I, 84 NY2d at 244). “[A] prime purpose for creating such corporations was to separate their administrative and fiscal functions from the State and its subdivisions” (Collins v Manhattan & Bronx Surface Tr. Operating Auth., 62 N.Y.2d 361, 367-368 [1984]). Essentially, these public benefit corporations serve “to `protect the State from liability and enable public projects to be carried on free from restrictions otherwise applicable'”

Accordingly, the Court of Appeals sided with New York state and Underwood in 2011, with sufficient legal support. Maybe the legislature was wrong to give this subsidy, but the Court (and Underwood) seemed to be following precedent and properly deferring to the legislature. Underwood was doing her job for the state of New York, which probably should be an additional point in her favor, not against her.

In reviewing her experience, here’s what struck me: Given that her career is so remarkable, given her outstanding reputation, why wasn’t she already New York’s attorney general? Or Obama’s solicitor general or attorney general? Or a federal judge? Maybe Underwood has no interest in campaigning for office and raising huge amounts of money to do so. Still, it’s hard not to wonder if someone like Schneiderman—who had been in the attorney general job for two terms and was going for third—was acting almost as a glass ceiling incarnate. With the Schneiderman ceiling now shattered and broken, Underwood is now the right person in the right place.

There is an additional reason Underwood could be the best person for the job: the office needs someone who has the experience and state-based political support to exercise control over New York district attorneys. As a Cuomo appointee, Underwood has more state-wide political capital than most plausible candidates for this job, and that would be especially important in managing New York district attorneys. Mueller can share information with Manhattan, Queens, and Brooklyn DAs, as I indicated in an earlier piece. These offices would potentially bring the prosecutions against, for example, Michael Cohen, should the federal investigations be corruptly ended. The DAs operate independently from the attorney general, which means that the attorney general can’t fire them. As such, the attorney general needs political influence as much as legal power.

In this coordination, though, Manhattan DA Cyrus Vance, Jr. could be a problem. Vance, who was actually under investigation by Schneiderman for failing to investigate Harvey Weinstein, has not acquitted himself valiantly in previous dealings with Trump corruption cases. Vance’s office was investigating alleged fraud by Ivanka Trump and Donald Trump Jr. at Trump SoHo in 2012. As the New Yorker reported, Trump’s longtime attorney Marc Kasowitz was one of Vance’s biggest donors and after a personal meeting with Kasowitz, Vance overruled his own prosecutors to shelve the case. Vance would have a credibility problem if he were to prosecute Cohen or other Trump defendants aggressively. Trumpers will say, with a valid basis: “He’s just trying to get back in good liberal graces after bad publicity.” Vance was also only re-elected because these scandals exploded after he won the Democratic nomination, and he lacked integrity to bow out. Someone like Underwood might be able to wield more influence in New York to bypass Vance, perhaps getting him to recuse from the cases, and get more credible prosecutors in the Manhattan DA’s office on this case.

The bottom line is that Mueller needs an effective leader with the legal background and the local political support to help coordinate potential state cases with the federal ones. In fact, we all need such a leader. And in this moment, with Schneiderman gone, Barbara Underwood represents a breakthrough, and the legislature should formally have her complete his term as full-fledged Attorney General.

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 American politics, and another project on the origins of independent agencies in America.

One thought on “Underwood for SG! (Reply to David Cay Johnston)”

  1. This is the kind of thoughtful and serious debate we should be having an important public issues. I appreciate the thoroughness of Jed Shugerman’s post.

    I’m well aware that Barbara Underwood is exceptionally qualified appeals court lawyer with a stellar record overall.

    That said, no law mandates that the Solicitor General of New York defend the actions of a state government entity or official. That New Yorkers are being forced to give – at a minimum — $1.4 billion to a hereditary potentate in the Middle East is offensive to the state constitution. By 2-to-1 margins, voters approved of the principal at issue – no cash or credit to companies — three times beginning in 1846.. There are are billions and billions of dollars of other subsidies that I have written about over the years. In many cases, these gifts created no jobs, but rather destroyed jobs.

    Well of course the court should give deference to the legislature, the primary difference should always be to the voters into the state constitution.

    Underwood told the highest BY state court that since the practice of been going on for decades it should not allow a lawsuit challenging to proceed. I think that’s outrageous.

    She, or office, could have, among other choices, said that it was important to litigate this issue so that would get a full public hearing. Instead her strategy was to make sure there would be no litigation. I think that’s an awful choice and she should properly be criticized for it by everyone who cares about adherence to the rule of law. Past practice does not justify continuing unconstitutional misconduct.

    Underwood could’ve also declined to defend conduct that even she acknowledged during oral argument is prohibited by the state constitution.

    I’m far less interested in Underwood individually than in persuading getting legal scholars, including the students who write many of the law review articles, to do serious research into the issue of practices that openly violate constitutions.

    I’m glad to supply examples. One of the most ludicrous is that the Louisiana constitution, because of an 1890 scandal, prohibits gambling and yet we have casinos all over that state. Why? Lawmakers in Baton Rouge simply declared various casino games not to be gambling.

    Another – the Texas constitution prohibits monopolies as offensive to human nature and yet a few years ago the legislature passed a law granting geographic monopolies to certain corporations. I brought both of these up and talks at various law schools but have so far had no success getting professors and their students to dig into what I think is an incredibly rich vein for scholarship With real significance.

    The first-order question – when should government lawyers decline to client to defend conduct which is clearly prohibited by the constitution, federal or state?

    In this matter, just replace subsidy to potentate with discrimination against people because of their race or religion. In that case would Underwood have said “I must defend conduct which is clearly prohibited by the state constitution” or declined? She have argued that the case should never be heard in court?

    This was dictated using Apple dictation.

    Liked by 1 person

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