Eric Schneiderman and the Bogus Issue of AG “Independence”


In the only hotly contested statewide primary race, the buzzword is “independence.”

The theory, propagated by those unlikely to get Andrew Cuomo’s support to replace him as attorney general, is that an endorsement from the probable next governor would compromise a law enforcement official whose “role,” as state Senator and AG candidate Eric Schneiderman put it, “is to watch what’s going on in the executive branch.”

This reasonable-sounding argument actually flies in the face of half a century of AG history in New York, where the legendary six-term Republican AG Louis Lefkowitz was so close to his counterpart Nelson Rockefeller that he sometimes slept in the governor’s mansion when he went to Albany.

As recently as the most recent AG race in 2006, Cuomo hotly pursued and finally won the endorsement of the then-AG and soon-to-be governor Eliot Spitzer. He was just one of several AGs who have run with the support of gubernatorial candidates or governors without so much as raising a good-government eyebrow. Indeed, editorial endorsements over decades, starting with the Times, don’t even refer to “independence” from the governor as a standard in their decision-making.

In a transparent attempt to turn Cuomo’s disenchantment with his candidacy into an asset, Schneiderman said last month that “voters are going to want an attorney general that is independent of the governor,” reminding us that Cuomo “investigated both of the governors under whom he served,” Spitzer and David Paterson. Actually, Cuomo issued a damning report on Spitzer and Troopergate just months after gaining his endorsement, and wound up recusing himself on the Paterson probe.

Schneiderman went so far as to question the qualifications of Kathleen Rice, the Nassau County District Attorney running for AG, simply because Cuomo is reputed to favor her. When Capital Tonight‘s Liz Benjamin asked him if Rice could be independent enough, Schneiderman demurred: “I don’t know. I hope so. I don’t know. I’m not sure what her thought processes are on these issues.”

Claiming through a spokesman that he’s never sought Cuomo’s endorsement, Schneiderman told the Voice that he would nonetheless “gladly accept it,” distinguishing himself from Rice by contending that his support from “nearly 100 endorsing leaders, activists and groups” proves that he “is clearly not beholden to any single one of them and would continue to be the independent leader he’s been.” In a goose-to-gander reversal, Schneiderman aide James Freedland said “it is up to Ms. Rice to demonstrate that the same can be said of her,” equating a Schneiderman endorsement by Cuomo with the ones he has “from dozens of other elected officials” and suggesting that Cuomo was, on the other hand, “individually responsible for the majority” of the Rice campaign’s “success.”

Two other candidates, Eric Dinallo and 14-term Assemblyman Richard Brodsky, told the Voice that they consider independence from the governor a “core issue” in the campaign, and both joined Schneiderman in saying they would not sign the pledge that Cuomo has made a centerpiece of his campaign. Dinallo, a former Wall Street prosecutor and state insurance commissioner, said he was “pleased” Cuomo put him on a list of three that he publicly said he might endorse, but distinguished an endorsement from signing what he called “an oath of fealty.” The other two on that Cuomo list, Rice and Sean Coffey, a private attorney also seeking the Democratic nomination, did sign the reform pledge.

Brodsky says “it’s the way Rice has handled” possible Cuomo support that “tells you a lot,” contending, like Schneiderman, that it would be wrong to have an AG “whose ability to function or survival is dependent on the good will of a chief executive.” The only evidence Brodsky cites that Rice might be so handicapped is the pledge: “Did she sign it?” he asks, adding, “there’s a real danger here.”

Ironically, Dinallo says he “doesn’t disagree with 98 percent” of Cuomo’s reform program, and Brodsky even concedes that he’s had conversations with Cuomo that danced around the question of possible backing. Brodsky says he never specifically asked for an endorsement, but that he did meet with Cuomo last year and told him how well he thought the two “could work together.” Then, when the Times reported that Cuomo was leaning toward Rice, Cuomo called him to say he hadn’t made up his mind and, recalls Brodsky, “I said that if the time comes when he is making a decision, I’d love to talk to him.” As close as that comes to a request for support, Brodsky joins Schneiderman in blasting Rice for almost getting what they both concede they want.

Schneiderman told the Voice for weeks that he was “reviewing” the Cuomo pledge, but he finally said he would not sign it because he “doesn’t believe it’s the right time to hold a constitutional convention,” one of the reforms listed on the one-page card. He said a convention “could jeopardize the hard-won protections enshrined in the law,” citing aid to the needy, abortion rights and education support as examples of what could be lost, without any explanation of how that might happen.

The Rice campaign declined to comment on why Dinallo, and now Schneiderman and Brodsky, “refused to pledge to clean up Albany, stabilize our state’s finances and improve government service,” adding that Rice’s support of the specifics in the pledge “makes you a reformer capable of leading the AG’s office.” It doesn’t, a spokesman insisted, “make a candidate any more or less likely to be sufficiently independent.”

Of course, Schneiderman has been endorsed by many of his state Senate colleagues, including Democratic leader John Sampson, who is reportedly under investigation by the state inspector general over his role in the award of the aqueduct gaming contract, a probe that could wind up on the AG’s desk. Indeed, Cuomo’s office has already sued Senator Pedro Espada, who was elevated to majority leader with Schneiderman’s acquiescence, and is conducting a current criminal investigation that may also be inherited by the next AG.

These potential conflicts are far more real than Schneiderman’s musings about Rice, yet Schneiderman’s spokesman dismissed them, citing Schneiderman’s leading role in the expulsion of Senator Hiram Monserrate, and ousters of Senate GOP leader Joe Bruno and onetime Senate Democratic leader Marty Connor, as proof that he’s “stood up to the leaders of both parties.” The parallels are blurred, since Monserrate was hardly a leader and barely a Democrat, and Schneiderman has been silent on the scandals that have engulfed Senate Democratic leaders since Connor, like Sampson and Malcolm Smith. Indeed, Schneiderman’s moves against Bruno and Connor were pure power politics, not examples of ethical independence.

Brodsky is backed by Shelly Silver and the Assembly leadership and, as ornery as the 17-term Westchester assemblyman can be, he, too, may face conflicts as AG in possible probes of his former colleagues. Cuomo has, for example, investigated member items, the prime pork of the Assembly. Indeed, if Brodsky and State Comptroller Tom DiNapoli are elected, they would join Chief Judge Jonathan Lippman as a trio of Silver allies, hemming Cuomo in on every flank and potentially undermining his independence to act. Asked about Brodsky’s ties to the Assembly, Schneiderman took it as another opportunity to level another implied shot at Rice and Cuomo, noting that it’s “neither been suggested nor reported that Mr. Brodsky’s campaign is being controlled by the speaker in any significant way.”

Coffey, a well-financed candidate who’s been the first up with commercials, ducked most of the Voice questions but did say, through a spokeswoman, that he “does not believe a Cuomo endorsement would compromise his independence and was proud to sign the reform pledge.”

“God bless Eliot Spitzer,” Andrew Cuomo declared in the throes of his fierce 2006 primary for AG against Mark Green, one-time New York City Public Advocate. Green and Cuomo both did commercials showing themselves with Spitzer, and The New York Times wound up endorsing Green, who was clearly Spitzer’s covert favorite. Shortly before the Times endorsed Cuomo in the general election, he did a mailer showing himself filling Spitzer’s shoes, and a 30-second TV spot entirely devoted to how “honored” he was “to have Eliot’s vote.” No one thought it compromised him.

As invisible as the issue of “independence” from the governor was in 2006, it was merely an echo of decades of editorial silence on the question. The Times‘ primary and general election endorsements never considered it, even in 1998, when the paper endorsed Spitzer against GOP incumbent Dennis Vacco, who was virtually an appendage of the Pataki administration. The New York Post noted in 2001 that Democrat Spitzer had so “effusively praised” Republican Governor George Pataki that he “might want to see him re-elected, and Spitzer said shortly before the 2002 election, “I don’t do criticizing of Pataki,” yet no editorial board made an issue of Spitzer’s lack of independence, which earned him a passive Republican opponent that year.

Part of the reason for this compatibility, which extends to the 1950s when Lefkowitz famously taught Rockefeller to eat blintzes, is that AGs spend about 75 percent of their time defending the state administration in litigation, and a speck of their resources probing it. In fact, AGs can only investigate state misconduct if the governor asks them to, a limitation on the AG’s powers that Cuomo has fought to change, with no material help from legislative Democrats (Spitzer and Paterson asked Cuomo to investigate them when the public heat got too hot). Under state law, it is district attorneys, from Albany to Manhattan, who are supposed to probe public corruption.

The real test of an AG’s independence is not when they investigate a governor, but when they refuse to represent him on an individual case, a withdrawal that is rare but that AGs have done–from Lefkowitz to Cuomo, with Bob Abrams and Oliver Koppell refusing to do so even when the governor was from the same party. Only Spitzer and Vacco failed to ever decline, to Spitzer’s discredit in the Campaign for Fiscal Equity lawsuit over the state’s discriminatory school aid formula. Dinallo, a top Spitzer aide, told the Voice that he “strongly believes that the attorney general should not represent the state” when he “disagrees with the concept of the case,” and should tell the governor “to get another lawyer.”

Aside from these extraordinary circumstances, the question of an AG candidate’s “independence” from Cuomo is a peculiar and unfortunate measure of the competition. Schneiderman, at one point in June, said that he doesn’t think that independence has “become a big issue,” but now he tells the Voice he considers it “vitally important.” Brodsky says it’s “the heart of the deal.” Yet even City Councilman Oliver Koppell, the only former AG who’s supporting Schneiderman, says that Schneiderman is taking a “difficult position” on this issue. Says Koppell, who was at loggerheads with then-Governor Mario Cuomo: “You are the chief lawyer of the state of New York and he is the governor of the state of New York. It’s a little hard to say you’re going to be independent of the governor.”

There’s no indication that any of the candidates would look the other way on a charge involving Cuomo, or his agencies, and, try as they might to imply it, Brodsky and Schneiderman won’t explicitly even say that about Rice. Neither is there any indication that they would represent Cuomo if he were to take a reprehensible position on a state matter, as Spitzer did for Pataki on a formula that damaged New York City public schools.

The “independence” issue is a calculated political tactic, designed to diminish a leading contender like Rice, without regard to history or fairness.

Research assistance: Gavin Aronsen, Michael Cohen, Nicole Maffeo, Adam Schwartzman, Jenny Tai