Jurisprudence

Schneiderman Has Always Been Dispensable

The legal battle against the Trump administration is better off without the disgraced attorney general.

Two images collaged together of Eric Schneiderman.
Eric Schneiderman. Photo illustration by Lisa Larson-Walker. Photos by Drew Angerer/Getty Images.

Eric Schneiderman stepped down as New York attorney general on Monday night following a blockbuster New Yorker report by Jane Mayer and Ronan Farrow documenting his alleged physical abuse of four women. Given the credible and horrifying accusations against him, there was little question that Schneiderman had to resign. No progressive in good standing attempted to defend the disgraced attorney general. But a question does linger over his abrupt bolt from office, thanks to the key role Schneiderman played in the legal resistance to President Donald Trump’s agenda. Will his absence hurt Democrats’ efforts to combat the Trump administration’s excesses in court?

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Probably not. The truth is that while Schneiderman was quite adept at publicizing his legal battles against Trump, he was not a uniquely masterful legal adversary of the president. Schneiderman clearly had his eye on a higher office, and he used his legal fights to score political points with Democratic voters, sometimes to the detriment of the causes themselves. His interim successor will likely be just as effective as he was, and a coterie of Democratic state attorneys general will immediately pick up where he left off. Legally speaking, Schneiderman will not be missed.

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There’s no denying that Schneiderman achieved a number of progressive victories over the course of his seven-year tenure. These triumphs in no way mitigate his violent misdeeds, but they do illustrate why some liberals feel so let down by their erstwhile champion. Perhaps most famously, Schneiderman launched a pathbreaking lawsuit against Trump University for its fraudulent practices, which ended in a settlement that compelled the company to pay restitution to its victims. This litigation drew ire from Trump, with the future president complaining incessantly about the attorney general in a mostly one-sided Twitter feud.

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As attorney general, Schneiderman also prioritized the protection of women against spousal abuse—now an obviously ironic passion in light of his own alleged domestic violence. His office published a brochure informing abuse victims of their rights and, more recently, sued the Weinstein Co. for enabling Harvey Weinstein’s harassment and assault. And Schneiderman led the investigation into Volkswagen’s emissions scandal, ultimately scoring $32.5 million for the state in a massive settlement. These accomplishments, along with his myriad attacks on Wall Street corruption, made material improvements in the lives of many New Yorkers.

To the rest of America, Schneiderman was best known for his legal crusades against the Trump administration—and it’s here that his impact has been vastly overstated. As attorney general, Schneiderman participated in lawsuits against the Trump administration’s three travel bans, its attempt to repeal the Clean Power Plan, its efforts to delay energy efficiency standards, its attack on sanctuary cities, its revocation of net neutrality, its rescission of the Deferred Action for Childhood Arrivals program, and its rollback of the Affordable Care Act’s contraceptive mandate. By lending his office’s resources and prestige to these suits, Schneiderman certainly helped to hinder Trump’s assault on Obama-era progressive policy.

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Yet Schneiderman was not alone in these crusades. In each suit, he joined together with a coalition of other Democratic attorneys general—usually about 16 to 22—so that no one state had to go it alone. Yes, his office occasionally played a vital role in spearheading the lawsuits. But if it hadn’t, another attorney general would have. Schneiderman led the pack alongside California Attorney General Xavier Becerra, Washington Attorney General Bob Ferguson, Virginia Attorney General Mark Herring, Massachusetts Attorney General Maura Healey, and Hawaii Attorney General Doug Chin. Schneiderman may have been the most prominent of these AGs. But his absence will not have a substantial impact on these lawyers’ ability to fight Trump’s agenda in court. (New York will remain in all litigation unless his successor decides to withdraw.)

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In fact, his resignation may help this anti-Trump crew in some respects. Schneiderman was, at heart, a politician—and one who plainly loathed Trump and yearned for the partisan battlefield. He used his high-profile lawsuits against the administration to boost his own political standing and draw plaudits from the Democratic base. In his speeches and statements, he tended to go after Trump personally and politically, not just legally. He seemed eager to move up the ladder and capitalized upon his courtroom endeavors to enhance his name recognition. His grandstanding could occlude genuine legal issues, allowing conservative commentators to accuse him—and courts that agreed with him—of participating in illegitimate resistance to Trump.

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No other Democratic attorney general—not even Becerra, a former congressman who carried his sharp political instincts to the California AG’s office—became such a partisan lightning rod. AGs like Ferguson and Herring are staunchly progressive but mild-mannered and lawyerly; at times, they have appeared almost pained to have to sue the president to protect their residents’ rights. Schneiderman’s participation in these lawsuits threatened to make the whole affair seem like a Twitter rivalry that boiled over into real life. The optics were less than ideal.

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Those optics became a looming threat when it was revealed last summer that special counsel Robert Mueller had teamed up with Schneiderman in his probe of Paul Manafort. On paper, this partnership made sense: Because Trump cannot pardon an individual for state crimes, a potential New York prosecution of Manafort could serve as a backstop if the president decides to grant him clemency. (The Supreme Court has interpreted the constitutional bar on double jeopardy to permit state and federal prosecutions of the same criminal activity.) Moreover, if Trump fired Mueller, Schneiderman could pick up where he left off rather than start from scratch.

But here, again, critics pounced: Mueller seemed to be entrusting a self-proclaimed political enemy of the president with the information necessary to prosecute the president’s associates. Trump supporters have already attempted to undermine the probe by claiming, falsely, that Mueller, a longtime Republican, is biased against Trump. Imagine the blowback if a state attorney general with actual hatred for Trump took the reins.

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The argument against Schneiderman’s involvement in the Mueller probe, made most forcefully by National Review’s Dan McLaughlin, is not entirely fair. For better or for worse, our state AGs are partisan, and Schneiderman’s hostility toward Trump, while intense, essentially boils down to predictable disagreements over his administration’s legal positions. There is no evidence that Schneiderman’s disdain for the president would have tainted his prosecution of the president’s associates with impermissible bias. But conservatives still could have exploited the attorney general’s well-documented anti-Trump sentiments to undercut public confidence in his work. Alan Dershowitz would’ve bashed him on TV; Rudy Giuliani would’ve advised Trump not to comply with his investigation; the whole affair would have been a distracting and unproductive sideshow.

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That’s why it’s such a relief that, as the Trump probe reaches a fever pitch, Barbara Underwood, formerly New York’s solicitor general, will now become the acting attorney general. Underwood is extraordinarily well-qualified for the job: She clerked for Supreme Court Justice Thurgood Marshall, taught at Yale Law School, worked in the New York District Attorney’s Office, and briefly served as acting solicitor general. She then worked in the U.S. Attorney’s Office for the Eastern District of New York before her elevation as state solicitor general in 2007. In that capacity, she has argued three cases before the U.S. Supreme Court.

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Underwood has all of Schneiderman’s intelligence with none of his baggage. She will surely keep the state involved in all current litigation against the Trump administration, and will almost certainly participate in future lawsuits against the president. She’s perfectly capable of handling whatever aspects of the Mueller probe get passed along to her. Of course, most importantly, she also has not been credibly accused of physical abuse by four women. So there isn’t really anything to mourn about Schneiderman’s resignation. His former office is in excellent hands. And there is no shortage of state AGs ready and willing to see the president in court.

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