Politics & Policy

Eric Schneiderman Needs to Recuse Himself from Trump Investigations

New York Attorney General Eric Schneiderman (Mike Segar/Reuters)
He is a sworn enemy of the president.

New York’s attorney general, Eric Schneiderman, has reportedly been assisting with Special Counsel Robert Mueller’s probe of former Trump campaign manager Paul Manafort. The investigation is one of several criminal spinoffs of Mueller’s larger counterintelligence probe of Russian involvement in the 2016 election.

The president cannot pardon violations of state law, so Schneiderman could be in a position to squeeze Manafort in ways that Mueller can’t. But Schneiderman’s public comments and civil lawsuits against Trump’s agenda make it impossible for the public to have confidence that he could be impartial on the subject of the president. Precisely because Schneiderman occupies a unique position of leverage, he needs to recuse himself from the probe.

A Prosecutor’s Duty to the Impartial Administration of Justice
Let’s start with first principles. Prosecutors are expected to be fair and impartial in the administration of justice. Standards for the recusal of prosecutors who can’t be impartial rely more on norms than on rules. For example, presidents have the legal power to exercise total control over their subordinates on matters of government policy, but that power is still widely seen as improper when applied to specific criminal prosecutions. That’s precisely why Mueller was appointed, as Schneiderman himself demanded back in May:

Schneiderman likewise appealed to New York State norms against the appearance of unbiased law enforcement when he requested (and was granted) authority by Governor Cuomo to take prosecutions of police shootings away from local district attorneys. As Schneiderman said at the time:

Nothing could be more critical … than acting immediately to restore trust and confidence in the independence of reviews in any case involving an unarmed civilian killed by a law enforcement officer. … The question in these difficult cases is not whether a local prosecutor … is capable of setting aside any personal biases in deciding whether, or how vigorously, to pursue the case. As the State’s chief law enforcement officer, I know that I and the overwhelming majority of my fellow prosecutors are not only capable of doing so, but are conscientious about our ethical duty to see that justice is done in every case. Rather, the question is whether there is public confidence that justice has been served.

Given a prosecutor’s broad powers and discretion, New York’s highest court has written:

It would be simplistic#…#to think of the impact of a prosecutor’s conflict of interest merely in terms of explicit instances of abuse. Even our thumbnail description of prosecutorial power is enough to indicate that resulting prejudice can at least as easily flow from an act of omission as from one of commission, from discretion withheld as from discretion exercised. In this context, whether abuse is express or implied may be difficult to determine. Suffice it to say that any presumption of impartiality tends to be undermined when there is a clear conflict of interest. Indeed, the judgmental nature of much of a [prosecutor’s] conduct will put it beyond effective [judicial] review. And, no matter how firmly and conscientiously a District Attorney may steel himself against the intrusion of a competing and disqualifying interest, he never can be certain that he has succeeded in isolating himself from the inroads on his subconscious.

Thus, the practical impossibility of establishing that the conflict has worked to defendant’s disadvantage dictates the adoption of standards under which a reasonable potential for prejudice will suffice. … Nor is the gravity of that potential lessened because it may cut either or both of two ways, against a defendant or against the [prosecution], toward each of whom the discharge of the [prosecutor]’s duties of course should be uninhibited by subjective influences.

While rules in this area take a back seat to norms, there are also rules. For example, the New York State Bar Association’s comments to Rule 3.8 of the New York Bar’s ethics rules, addressing the “Special Responsibilities of Prosecutors and other Government Lawyers,” states:

A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. … In the context of a criminal prosecution, a prosecutor’s extrajudicial statement can create the additional problem of increasing public condemnation of the accused. … A prosecutor can, and should, avoid comments that have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium against the accused.

Rule 3.4 also provides that no lawyer may “present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter,” a provision that heightens the ethical responsibilities of a criminal prosecutor who is also engaged in civil litigation with the defendant — as Schneiderman is currently, on as many fronts as he can manage, against the Trump administration.

Schneiderman is an elected Democrat, giving him an obvious motive to wish ill on the fortunes of President Trump. But nearly all of our law enforcement is directed by elected officials or their appointees, so party membership alone has never been viewed as grounds for recusal. However, the District Attorneys Association of the State of New York, while recognizing that most state chief prosecutors are elected members of a political party, has issued ethical guidelines designed to “help District Attorneys maintain a sense of public confidence in the non-partisan nature of the District Attorney’s office,” including prohibitions on many kinds of activity that would be routine for other elected officials. For example, “While attending a political/social function, District Attorneys or Assistant District Attorneys shall not speak at such functions; they shall not publicize their attendance at such functions; nor shall they act in a manner which could be interpreted as lending the prestige and weight of their office to the political party or function. … [They shall not] engage in any political activity during normal business hours or during the course of the performance of their official duties. … [They shall not] misuse their public positions for the purpose of obstructing or furthering the political activities of any political party or candidate.”

As we shall see, Schneiderman’s activities go well beyond simply being an elected Democratic-party official. He has been engaged in a constant campaign of political #Resistance to Trump.

Schneiderman: Against Trump
A state attorney general picks his cases, and some of them may involve taking sides against the federal government, especially if it’s run by another party. But hardly any state AG in memory has filed more lawsuits against the feds, with more personally vitriolic fanfare against the president, than Schneiderman has. Even a cursory review of his official Twitter feed, for example, reveals that he spends nearly half his time opposing Trump. That opposition is not on one issue, but a broad array of issues, and his grounds for doing so are often strikingly personal and sometimes totally unrelated to anything within his jurisdiction. Here are some examples:

There’s more where those came from, but you get the idea. And this isn’t just on his Twitter feed. On a radio show back in January, when Trump had been in office for less than two weeks, Schneiderman was bragging about going after the president and musing about which of his investigations could lead to impeachment:

We have not been shy about going after Mr. Trump’s business ventures. … He has no immunity from conduct prior to his assuming the presidency. I do think that the, the issues related to his university and his foundation are unlikely to constitute the kind of high crimes and misdemeanors that might remove him from office. … There are a lot of reports of egregious acts he’s taken in the course of his business, his sexual assaults and other things — that’s all fair game. And my office has been the most aggressive office in the country about pursuing that.

In February, NPR reported that Schneiderman might consider revoking Trump’s corporate charter and had “told NPR a charter challenge is indeed part of a broader discussion among Democratic attorneys general about President Trump’s business holdings.” Later that month, a Salon headline blared, “New York Attorney General Eric Schneiderman bids to become Trump’s No. 1 enemy.” (Daily Kos had offered the title to Schneiderman before Trump was even inaugurated.) In March, the Wall Street Journal reported that Schneiderman had hired a veteran federal prosecutor “to focus specifically on issues involving the Trump administration.” In May, on the heels of successfully pressing for Mueller’s appointment, Schneiderman told New York magazine — which noted that “his confrontational stance toward Trump has made him a popular figure on the left” — that “if it’s hard to get checks on the presidency from Congress, we’re going to try to fill that space.” In June, speaking of his lawsuits against the travel ban, he crowed,

That was really the beginning of what I call the legal resistance. … There’s a sense in the legal community of Attorneys General, lawyers for local governments, lawyers for nonprofits, and a lot of the members of the private bar that this order and other things they’ve done since then are offensive in a more fundamental way than mean-spiritedness or bias. It shows a total disregard for the rule of law.

On his Facebook page, he’s promoted the hashtag #TheResistanceIsLocal.

No Grudge Match Like An Old Grudge Match
Schneiderman’s feud with Trump predates the latter’s presidential run. While he counted Trump as a five-figure donor to his 2010 campaign, Schneiderman filed a $40 million fraud lawsuit against Trump University in 2013. The same year, Trump accused Schneiderman of trying to shake down Ivanka for donations — perhaps somewhat dubiously, as New York’s ethics commission dismissed Trump’s complaint.

As Salon noted, Schneiderman “was a target of Trump’s Twitter feed long before the president’s campaign-trail assaults on Marco Rubio or Ted Cruz.” A sampling of Trump’s tweeted insults shows why Schneiderman may have a particularly personal ax to grind:

Of course, Schneiderman isn’t responsible for Trump’s itchy Twitter finger, but this is yet more reason to view the AG’s efforts now as part of a longstanding and mutual bitterly personal feud.

Every president has to deal with partisan investigations by Congress; indeed, partisanship is part of legislative oversight by design. And ambitious prosecutors looking to make a name for themselves at the expense of the other party are also an established part of the system. But we expect a man running any part of a criminal investigation touching the presidency to project at least a minimal standard of impartiality. By making himself both a personal antagonist of Trump and a high-profile opponent of the administration’s policy agenda on a wide array of topics, Eric Schneiderman leaves no doubt that he is eager to stop Trump on every front at every opportunity. That is the furthest thing from impartial. He should recuse himself from any criminal probe.

Dan McLaughlin — Dan McLaughlin is an attorney practicing securities and commercial litigation in New York City, and a contributing columnist at National Review Online.

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