Some Thoughts on Eric Schneiderman
By Zachary Margulis-Ohnuma
The abrupt resignation of New York Attorney General Eric Schneiderman Monday night left the legal community scratching its head. How could such a bright star, who consistently used the power of his office to fight for just causes, especially for women, have fallen in such rapid and spectacular fashion?
The answer, of course, is that people are complicated.
Schneiderman’s initial response to the New Yorker’s story about four women accusing him of abuse was not encouraging: in a statement quoted in the article he asserted that he never assaulted anyone but admitted he engaged in “role-playing and other consensual sexual activity” in the “privacy of intimate relationships.” In essence, he told the New Yorker he didn’t do it, but if he did do it, it was consensual.
That’s just about the worst legal strategy one could think up. Putting it on the record only made things worse for him.
It is impossible to imagine the scenarios described in the New Yorker, on-the-record, as “consensual” or the result of a misunderstanding over role-playing: “All of a sudden,” one of the victims told the magazine, “he just slapped me, open-handed and with great force, across the face, landing the blow directly onto my ear… It was horrendous.” Since Schneiderman’s statement is in the story itself, it was likely made before Schneiderman even read what the New Yorker was writing about him, and certainly without the advice of an experienced criminal lawyer. The statement will be admissible in court and amounts to a partial, defensive confession that only makes him look guilty, while simultaneously trashing the victims as not only liars, but also sexual deviants. All that might be true, but it certainly does not seem true coming from the alleged perpetrator in the immediate aftermath of the allegations. So lesson number one: even if you are a brilliant lawyer, keep your mouth shut when you are accused of a crime…at least until you have had plenty of time to formulate a response and obtain competent legal counsel.
Abhorrent as the accusations are, Schneiderman leaves behind an impressive record of achievement. Elected statewide and independent of the governor, the attorney general’s office has a broad portfolio, representing the People of the State of New York in criminal, civil, and impact litigation. In addition to taking on Pres. Donald Trump’s policies at a national level, the New York AG brings individual criminal cases against defendants as sort of a special counsel in situations where the local district attorney is conflicted. For example, the office is investigating Manhattan district attorney Cyrus Vance’s supposed kid-glove handling of sex abuse allegations against movie mogul Harvey Weinstein (we wish they would investigate Mr. Vance’s disparate treatment of petty offenses committed by the poor, a far more serious problem affecting thousands of people).
The AG also defends the state and state officials against lawsuits: our office presently has two cases in which the AG’s office is representing state officials we contend are responsible for permitting women inmates to be sexually abused at Bedford Hills Correctional Facility. In those cases, the AG’s office declined to defend the actual abusers, both of whom were charged with crimes, including a federal civil rights violation which became a crime only after the Second Circuit Court of Appeals ruled in favor of our clients in 2015 that sexual abuse of prisoners constitutes cruel and unusual punishment.
Schneiderman will be replaced in the short-term by Barbara Underwood, an undeniably brilliant attorney with a dazzling background. A former acting U.S. solicitor general, Underwood has argued twenty cases before the U.S. Supreme Court and taught at Yale Law School for a decade. She clerked for Thurgood Marshall and has an abiding knowledge of criminal justice issues. She also has deep local (but prosecutorial) roots: she was an executive at the U.S. Attorney’s Office for the Eastern District of New York, the Kings County District Attorney’s Office, the Queens County District Attorney’s Office and a trial attorney for the Manhattan District Attorney’s office.
At the same time, before the familiar political crowing gets fully underway, it is important to recognize that the allegations against Schneiderman are qualitatively more serious than the allegations against other politicians who have resigned in scandal in recent years. His conduct, if proven true, should not be conflated with what was done by Elliot Spitzer, Al Franken, or even Anthony Weiner. Although Weiner was criminally prosecuted, he never physically harmed or threatened anybody. Schneiderman seems to be accused of using his blameless, even moralistic, public face as a shield for brutal conduct that is criminal and destructive by any measure, more akin to hebephilic Alabama Judge Roy Moore or White House staffer Rob Porter than to handsy Garrison Keillor. Schniederman is an accomplished lawyer himself. He needs a good lawyer not to keep him in office, but to keep him out of jail for the harm he inflicted on women who trusted him.