On Monday, the Intercept reported that Fordham University School of Law professor Zephyr Teachout had raised more money from small donors than her principal competitor, Tish James, in the campaign to be New York’s next attorney general. Teachout is running to take over the job vacated two months ago by Eric Schneiderman, who resigned after accusations of domestic assault. Before resigning, Schneiderman was one of the leading state figures challenging Trump administration policies, having filed more than 100 legal or administrative actions against the federal government, including lawsuits over Trump’s rescission of DACA, the president’s travel bans, and changes to the 2020 census. Barbara Underwood, who is serving as Schneiderman’s replacement until the election, has taken up that mantle, adding a major lawsuit against the Donald J. Trump Foundation for self-dealing and unlawful political coordination.
In addition to serving as the top law enforcement officer in one of the country’s most populous states, whoever takes over for Underwood will have the opportunity to carry on the state-level fight against potentially unlawful Trump administration policies and Trump business actions. Should the president seek to sabotage the Robert Mueller investigation through obstructive pardons or a series of firings, that person may also have a role in bringing state charges against Trump confederates. Recently, I spoke with Teachout to discuss how she might approach the unique issues posed by the Trump era as New York’s attorney general. The following transcript of our conversation has been condensed for length and clarity.
Jeremy Stahl: There are a bunch of national issues that would seem to have a connection to how the attorney general of New York might be doing her job going forward—court-mandated arbitration, immigration and family separation, the Mueller probe. How would you envision your role with respect to those national issues, and with respect to Donald Trump?
Zephyr Teachout: The AG’s role—especially the New York AG’s role—in relationship to Donald Trump is threefold. One is the obligation to protect the integrity of the business organizations and nonprofit organizations in our state. The Trump Organization has tentacles everywhere, but is headquartered in New York. The beating heart of the corruption of Trump as president, and Trump as businessman, is in our state. The second way which the New York attorney general has a unique and critically important role is that a federal pardon does not [pardon] state crimes. New York has very strong laws against bank fraud, tax fraud, false statements, obstruction of governmental administration, bribery, money laundering, larceny, just to name a few. So if Trump were to issue a self-serving pardon, I, as attorney general, would be fully ready to bring state charges, those that are not barred by our own state double-jeopardy statue. My own read is that in the vast majority of instances of a self-serving pardon, the person pardoned would still be exposed to state criminal law. It’s incredibly important that we do not allow Trump to issue pardons to protect himself and get away with it. The third area is in leading these critical lawsuits against specific Trump policies, whether that’s the tragically failed effort to stop the Muslim ban, or the EPA rollback on environmental standards. The last attorney general, Eric Schneiderman, had more than 100 legal actions against the Trump administration’s illegal and unconstitutional actions. A strong AG’s office has to be at the very center and the cutting edge of using laws, both as a shield and sword, against a profoundly lawless administration.
The previous attorney general supported a call for New York to modify its double-jeopardy laws to ensure that, in the case of an obstructive pardon, the state would have some recourse. What happened to that proposal?
I’ve been a strong supporter of the bill. It did not pass this legislative session, and that has to do with the profoundly broken politics in New York state. There’s a Republican Senate that basically blocks legislation, so it did not go through. But while this is an important bill to pass, it is not a necessary bill to pass. Let’s imagine a Trump associate is pardoned for a Federal Election Commission violation so that they won’t testify against Donald Trump. That would mean that—if there were the exact same act in New York state covering a crime defined in the exact same way—New York could not bring a prosecution against that associate. However, the pardon for a FEC violation would in no way limit the ability of New York to prosecute for bank fraud, for false statements, for larceny, or money laundering. My assessment is that these instances will be rare in which there is a single illegal act by an associate, and that single illegal act is pardoned by Donald Trump, and that overlaps perfectly with state laws. It’ll be really important for the New York attorney general to have already done the investigation to be ready to bring those cases where double jeopardy doesn’t apply, possibly in conjunction with the local district attorneys. Donald Trump should not think that he has a get-out-of-jail-free card with a presidential pardon. Beefing up the public corruption unit and the criminal unit is a top priority of mine.
Do you see any potential implications in the president tweeting about the necessity to impose “LAW AND ORDER” on “radical protesters”?
What we’ve seen is that President Trump repeatedly tells us that he doesn’t respect the most basic and sacred principles and laws in our Constitution, including the First Amendment, the right to speak freely, the right to protest. As New Yorker writer Masha Gessen said long ago, when he says something, we should take him seriously, and stand up, and resist it. What is so profoundly perverse about how Donald Trump talks about law is when he says the word law, he usually means the opposite of law. So when he says law and order, it’s accompanying a sentence in which he’s trying to get rid of due process or the First Amendment.
What role does the New York attorney general have in combating something like the child-separation policy?
The attorney general does play this critical role standing in as a protector of New York’s interest against unconstitutional federal policy. New York has an interest in nondiscrimination. New York has an interest in the critical relationship between parent and child and family unity. New York has an interest in protecting children within its state, and we know that several of these children are here in New York. I do think it’s critical that the next attorney general of New York be steeped in boundary-pushing litigation and be willing to use all of the swords, shields, and forgotten tools of the law to confront a level of disrespect for the law from the presidency that we certainly have not seen in my lifetime.
You support abolishing ICE. What role does the New York AG play there aside from offering public support for the idea?
The public-proponent role is absolutely critical because when ICE and Customs and Border Protection are acting in a consistently illegal manner, then it falls on the attorneys general to enforce both federal and state law against the federal government. Lawyers should be playing a leading role in the call to abolish agencies that have become so riddled with illegality that they are no longer credible as law enforcement. As the chief law enforcement officer in New York state, the attorney general has a legal responsibility to call out any agency that has lost its credibility as law enforcement.
How do you feel about reports that many parents of children who were separated from their guardians at the border—children the government is under a court order to reunify with their families—have already been deported, as well as reports that asylum-seeking families were given the choice between deportation together or deportation apart, rather than the opportunity to pursue their asylum claims?
It’s totally horrifying.
What are some of the potential remedies, then?
It shocks the conscience of any person, let alone any lawyer. Everything about this process top to bottom suggests an administration that keeps replacing one inhumane and illegal practice with another. The ACLU has been an absolutely extraordinary leader and has been talking for months about the government’s use of what it calls “choice” to justify illegal behavior. Creating a choice between two horrifying options doesn’t make illegal behavior legal. I have to research what our particular recourse might be, but that’s been the basic, correct message of the ACLU.