Government

Who Will Be The Next New York Attorney General, And Can SHE Hold The Job Past November?

If you understand the process for replacing Schneiderman, you'll understand that things are about to get worse for Trump, not better.

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(Photo by Drew Angerer/Getty Images)

There’s a fairly important legal job that has opened up. I saw on Indeed.com that New York State is looking for a new Attorney General.

Former New York Attorney General Eric Schneiderman resigned last night. For all of you “due process” men, don’t worry, he’s about to get it. He’s under criminal investigation now, so he’ll get all the process in the world. What he won’t get is the opportunity to use his position as the chief law enforcement officer in New York State to say that drunken, physical abuse was just a sex game gone awry. Buh bye, the state AG’s office has more important business to attend to.

So who will be the next NYAG? If you aren’t familiar with the process of replacing an Attorney General here in New York, it’s actually pretty straightforward. For the time being, Barbara Underwood, the New York Solicitor General, becomes acting Attorney General. But that’s only until the New York State Legislature picks a permanent replacement. The Legislature votes in a joint-session, which means Democrats control the process. You’ll be hearing the name Carl Heastie a lot, as he’s the Assembly leader. Technically, New York Governor Andrew Cuomo doesn’t have a say, but I doubt Heastie will move without Cuomo’s support.

But the “permanent” replacement won’t necessarily be there for long, because the Attorney General’s office was up for election this November anyway. The NYAG is elected on the same cycle as the governor. There was already a Republican running against Schneiderman, a Republican who was going to get trounced. But now that Schneiderman is out, that Democratic primary is where the action is going to be.

Potentially, by 2019, the New York Attorney General succession will have been: Schneiderman –> Underwood –> Somebody –> Somebody Else.

Exciting! If Donald Trump, Michael Cohen, and crew think all that upheaval will work out for them, they aren’t paying attention to the kinds of things that are going to win you a Democratic primary in New York State this year.

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So let’s start filling in the blanks by taking one of the big names off the board. Preet Bharara is not going to be appointed as the next NYAG. He might run, but he’s not coming into that race as the nominal “incumbent.” I promise. You know how I know? Because the State Assembly Speaker is Carl Heastie and not long-time Democratic leader Sheldon Silver. That’s because old Shelly is off somewhere still trying to get Preet’s foot out of his ass. The New York State Legislature doesn’t like Bharara; in fact, they probably fear him. He’s not getting his job unless he wins it.

Bharara is also a man and… given that two of the last three New York Attorneys General have ended up in horrible sex scandals that exposed them as hypocrites or worse, I think that maybe it’s time to put a non-penis in that role. You’ll also remember that in the same September primary that the new Attorney General will be running in, Governor Cuomo himself will be facing a challenge from Cynthia Nixon. He might like to be running on the same team as a powerful, high-profile woman.

All of this points to former-Nassau County District Attorney and current Congresswoman Kathleen Rice becoming the next New York Attorney General. Rice ran against Schneiderman in the primary in 2014, and was actually Cuomo’s pick. She’s an actual prosecutor, at a time when the NYAG’s office really needs a prosecutor, but her Congressional win shows she knows how to play politics. She’s a Democratic Congresswoman on Long Island, which is tougher to be than you think, so there’s a good chance she will play well enough upstate to win a general election for AG. Yes, removing her from her Congressional seat puts a blue seat “in play.” But if the country had to choose between a close race for one NY Congressional seat versus potentially losing the NYAG to a Republican, trust me, you’re going to want to put the AG on lockdown and try to “blue wave” yourself back into that Congressional seat.

I’d bet money on Rice getting this appointment.

Of course, there are some other names being thrown about. New York City Public Advocate Letitia James has somewhat openly desired Schneiderman’s job. She’s a black woman who would add some much needed color to Cuomo’s ticket. And, elevating her would probably piss off New York City Mayor Bill de Blasio, and we know Cuomo wakes up in the morning thinking about new ways to piss off de Blasio. But James hasn’t run statewide before. Again, losing the seat in November to a Republican is the thing everybody should be most worried about.

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Another name thrown out there by Biglaw sources is Gibson Dunn partner Mylan Denerstein. Denerstein was a longtime Cuomo aide. She served as Executive Deputy Attorney General for Social Justice when Cuomo was NYAG. And served Cuomo in various capacities when he was elected Governor. But she’s never run for anything, so while she would likely be an effective stopgap, who knows how she’d play in a primary or general election.

Speaking of that primary: we don’t know how many people will run in that race. The NYAG has long been a stepping stone into the Governor’s mansion. It’s always been a position of immense power, given that it is the home regulator of Wall Street. But Schneiderman has proved that being NYAG puts you on the front lines of resisting Trump. Anybody in that job right now becomes a national figure, and that will attract all sorts of people.

Which brings me back to Bharara. We can’t know what his ambitions are, but we know he wanted to keep his job as U.S. Attorney for the Southern District when Trump fired him. We know he’s not “done.” He couldn’t have expected the NYAG job to open up, but given his profile and record, it feels like he’d be a very strong contender in the primary, should he choose to run.

What’s likely to happen is that the Legislature chooses somebody they think can win in November, that person realizes to win the primary she has to be seen as “tough on Trump.” The other people running against her will have to promise they’ll be even tougher on Trump. And we could end up with a person that’s actually been fired by Trump.

Whatever happens, New York State’s role as a possible legal check on the Trump administration will not be diminished. If anything, it will be enhanced. Republicans might be gloating about Schneiderman’s downfall now, but I doubt they will be in January 2019.

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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