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:
— Eric Schneiderman (@AGSchneiderman) May 11, 2017
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.