The Question Of Eric Schneiderman's Successor

Before the execrable Eric Schneiderman completely disappears down the memory hole of history, perhaps we should pause for one more post to consider just how truly bad an Attorney General, and a man, this guy was.  Those issues are also relevant to the question of who should be his successor.

In my previous post on Schneiderman ("Good Riddance To Eric Schneiderman"), I considered only a couple of examples of his abuse and politicization of the prosecutorial powers of his office, namely his supposed "criminal" investigation of Exxon and his shakedowns of the banking industry.  But, as significant as those two examples may be, they were only the tip of the proverbial iceberg.  Holman Jenkins, writing in the Wall Street Journal on Wednesday, reminds us of the endless scope of Schneiderman's abuse:

His office pumped out two or three press releases into my inbox every day, highlighting his use of his law-enforcement powers to confront individuals or businesses that mainly were on the wrong side of some prevailing Manhattan political correctness.  Facebook , fuel-economy standards, the Russia investigation, Harvey Weinstein, anything involving EPA Administrator Scott Pruitt — there was no subject in the news that was so far afield from the concerns of New York law that Mr. Schneiderman couldn’t justify rushing out a statement or preferably announcing some sort of pseudo-action (often in the form of “filing comments” if not an actual lawsuit).  “A.G. Schneiderman To Trump Administration: Don’t Drill On Our Coast,” went one recent press announcement, not even bothering to state a basis in New York law for the attorney general’s interest in the matter.

Jenkins's litany inspired me to look at the NY AG's website to compile a small list of Schneiderman initiatives that I would deem abusive and/or outside the scope of his office, just from the past few months.  Here goes:

• On May 7 (that would be the very day that he resigned in disgrace) Schneiderman led a group of 8 Democrat AGs in demanding (by letter) that EPA Administrator Scott Pruitt not proceed with his proposed rule requiring public availability of data and methods for scientific results to be used by the agency.
• On May 1, Schneiderman (along with 16 other Democrat AGs) brought a lawsuit against the EPA to oppose rollback of automobile miles per gallon standards for the 2022 - 2025 model years.
• On April 30, Schneiderman stuck his nose into the bankruptcy of the Weinstein Company, by urging bidders for the company's assets to "set aside financial resources to compensate and provide support services for injured employees and industry talent."  More than a little irony there.  Note that anyone participating in this bidding process would rightly take that as an explicit threat that failure to accede to Schneiderman's request would be to invite a prosecution of yourself on some trumped-up ground.
• On April 20 Schneiderman called on the New York legislature to pass legislation to enable him to prosecute under state law any individuals who had been granted a pardon by President Trump.  In his press release, Schneiderman called this "clos[ing] New York's double jeopardy loophole."  Did you know that the rule against double jeopardy was a "loophole"?
• On April 3 Schneiderman filed a lawsuit seeking an injunction against the proposed Census question asking whether the respondent is a citizen.
• On March 20 Schneiderman stuck his nose into the Facebook/Cambridge Analytica matter. “Consumers have a right to know how their information is used – and companies like Facebook have a fundamental responsibility to protect their users’ personal information.  Today, along with Massachusetts Attorney General Healey, we sent a demand letter to Facebook – the first step in our joint investigation to get to the bottom of what happened."
• On February 22 Schneiderman (along with another group of Democrat AGs) filed suit to block the rescission by the FCC of the so-called "net neutrality" rule.

There are many more in that time period that I skipped over.  It's a judgment call as to which are the most egregious.

Then there was Schneiderman's completely partisan use of his office when it came to disclosures of identity of donors to charities.  In 2016 Schneiderman subpoenaed the Competitive Enterprise Institute, a conservative-side Washington think tank, seeking to obtain the identity of its donors.  The subpoena came in the context of Schneiderman's initiation of criminal investigations against those he deemed to be "climate change deniers" (e.g., Exxon).  In other words, the idea was to attempt to use the criminal investigation powers of his office to put his political opponents out of business.  Since the NAACP case in 1958, the Supreme Court has recognized the First Amendment right of advocacy organizations to maintain the confidentiality of their private donors, precisely in order to protect the donors against government coercion.  CEI had opposed Schneiderman's agenda on the climate change issue.  Meanwhile, in the case of a charity receiving a grant from a government entity, New York law specifically requires disclosure of the identity of the donor and the amount of each donation to the New York Attorney General.  The New York Post reported that the Clinton Foundation received some $225 million of donations from foreign governments between 2010 and 2014.  But Schneiderman could not have been less interested in the identity of the donors, and gave the Clinton Foundation a pass on the statutorily-mandated disclosures.

So who should succeed Schneiderman now that he has gone off into oblivion?  In an editorial on May 9, the New York Times came out in opposition to having the successor chosen by means of a "backroom deal," and instead advocated that the job should go to Schneiderman's number 2, Barbara Underwood.  The Times called Underwood "supremely qualified," and added:

Ms. Underwood, a former Yale Law School professor, has decades of experience, has argued 20 cases before the Supreme Court and clerked for Justice Thurgood Marshall. She is more qualified than anyone else whose name has been mentioned.

Yeah?  Well here are my questions about Ms. Underwood:  Where was she when Schneiderman misused the powers of his office to initiate criminal investigations against his political opponents?  Where was she when he shook down a couple of dozen banks for hundreds of millions of dollars each and usurped the money into his own slush funds?  Where was she when he decided it was OK to turn the law enforcement powers of an Attorney General into political levers to advance the interests of Democrats in every instance?  Where was she when Schneiderman used his powers to threaten donors to conservative-side charities and gave a pass to the Clinton Foundation?

And by the way, are we to believe that Ms. Underwood, working next door to Schneiderman every day for multiple years, knew nothing of his treatment of women, his alcoholism, and his substance abuse?

In short, I don't see how everyone who worked in Schneiderman's office, and certainly Ms. Underwood, is not disqualified from being the successor.

As readers here know, over the past couple of years I have been involved in a half dozen FOIL cases against Schneiderman's office.  Each time I have appeared in court against his people, I have made a point of saying to these young lawyers that they should not be working for this guy and should get out before their careers are irreparably tainted.  This is not something that I have ever done before in any context.  It was obvious to me that he was a uniquely bad guy.  And I knew nothing about the issues of his abuse of women.