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.

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.

Continue reading “Schneiderman out. What happens next?”

Avengers: Infinity War and its Love and Death Problems (SPOILER)

I saw Infinity War yesterday with my 13-year-old and his good friend. It was good, but definitely not great. It had a big problem for them in its ending, and it had a huge problem for me in the middle about its understanding of love. (Don’t click below if you don’t want the spoilers!)

Continue reading “Avengers: Infinity War and its Love and Death Problems (SPOILER)”

Happy Law Day, Happy Emoluments Day!

Today is Law Day, celebrating the rule of law in America. To celebrate, our team of legal historians (John Mikhail, Jack Rakove, Gautham Rao, Simon Stern and I) filed our amicus brief in the 2d Circuit on the history and meaning of the Emoluments Clauses. The brief is here.

Gautham and I also recently published an essay in the Hastings Constitutional Law Quarterly on this issue, titled “Emoluments, Zones of Interests, and Political Questions: A Cautionary Tale.” SSRN link here.

Abstract: As the Supreme Court addresses partisan gerrymanders in 2018, the “political
question” doctrine is facing intense scrutiny. Will the Court tackle the problem or
punt once again? It turns out that other high-profile cases in the lower courts offer
a perspective on the political question doctrine. The Emoluments cases offer a
cautionary tale about the use of the political question doctrine, and how the
political question doctrine is too often an unconsciously tempting escape for judges
facing challenging legal questions.
The dismissal by the Southern District of New York in CREW v. Trump avoided
reaching the merits of the emoluments claims by finding that the plaintiffs do not
have standing to bring the suit. The decision contains serious errors in its zone of
interests analysis and its political question analysis. In this Essay, we argue that
the plaintiffs are clearly in the zone of interests of the Emoluments clauses and that
the political question analysis is out of step with a half dozen justiciable clauses of
the Constitution. These errors are a sign of trying too hard to avoid the merits.
There are certainly times when it is appropriate for courts to invoke the political
question doctrine, but this episode is a reminder for judges to slow down and reflect
when it may be an intuitively appealing resolution, but in fact, it is a dodge of a
tough constitutional issue.


Scalia is still wrong

My latest in Slate:

“On Thursday, the Senate Judiciary Committee advanced a bill seeking to protect the special counsel from an unjustified removal on a bipartisan 14–7 vote, an important signal of support for Robert Mueller. Majority Leader Mitch McConnell, however, has promised not to bring the Special Counsel Independence and Integrity Act to the Senate floor, and his obstructionism has been bolstered by a bizarre legal claim by some of his Republican colleagues.

In Thursday’s debate on the motion, Sen. Ben Sasse made a stunning argument for voting no: “Many of us think we are bound” by Justice Antonin Scalia’s opinion in the 1988 case Morrison v. Olson. Sens. Orrin Hatch and Mike Lee expressed a similar reasoning for their “no” votes. It’s not a surprise for a senator to defer to Supreme Court decisions. But it is a shock for a senator to say he is bound by a lone dissent in a 7–1 Supreme Court case decided 30 years ago. There is a reason Scalia was all alone in dissent: He was wrong, and his historical assumptions were irredeemably wrong…”

It’s 1986 all over again

We are re-living 1986. The best teams in baseball are the Red Sox, Mets, Astros, and Angels. The President is under investigation for illegal foreign transactions. Donald Trump is on the verge of bankruptcy. And the Cold War with Russia is serious… but this time it’s only heating up.
Guess what else happened in 1986? The Democrats reclaimed the Senate for the first time in 6 years… and used that new power to block right-wing Robert Bork, most appropriately. Those are the stakes in 2018-2020.