Letitia “Tish” James, the Democrat elected as New York state attorney general, will have the power starting in January to direct the state’s litigation strategy against federal actions, state issues and more. But what will she do with it?
During the campaign James left no mystery as to her plans to use the office as a tool to take on President Donald Trump and Trump administration policies. It’s the same approach current Attorney General Barbara Underwood and her predecessor, former Attorney General Eric Schneiderman, have taken since Trump was elected in 2016.
“I think you can expect to see that she will largely stay the course the office has been on,” said Harold Iselin, managing shareholder at Greenberg Traurig’s Albany office. “I say that because she made that point herself during the campaign. I think the agenda that the office was bringing represents the kind of cases that Tish would also be interested in pursuing.”
James and Underwood present striking similarities in their approach to the job of being the state’s top litigator. Both, for example, have said taking on policies initiated by the White House and Republicans in Congress are among their top priorities, along with investigating Trump himself. But the two women come from very different backgrounds.
James started her career in law as a public defender with the Legal Aid Society. Underwood has spent much of her career as a prosecutor, working for district attorneys in both Queens and Brooklyn during her early years as a lawyer. She’s also held positions in the U.S. Attorney’s Office in the Eastern District of New York and served as the country’s acting solicitor general for a time.
Underwood has never been involved in politics, instead seeking positions on the cusp of electoral influence. She was the state’s solicitor general until earlier this year when the Legislature selected her as the next state attorney general.
James, meanwhile, has been a political figure for nearly two decades. She was elected to the New York City Council in 2003 and served there until she was elected New York City public advocate in 2013. She had just started her second term in the position when the race for state attorney general opened up this year.
The two have at least one thing in common: they are both Democrats. The career track that James chose—from defense attorney to politician—could predict the areas where she might dedicate more resources when she takes office.
“I think we would hope that people’s personal experiences do in some ways inform what they think about it,” Iselin said. “I certainly think it shapes her view in regards to consumer protection, the rights of criminal defendants. I think, yes, we would see a little bit of that.”
James, for example, supports a newly created commission to investigate complaints of misconduct by the state’s prosecutors and has said she will defend the law’s constitutionality. The District Attorneys Association of the State of New York is currently suing Gov. Andrew Cuomo and legislative leaders over the law and have asked for a preliminary injunction.
She also supports discovery reform, which has stalled among state lawmakers in recent years. Democrats will have a strong majority in the state Senate come January, based on election results, which could give the issue new legs. James, like her predecessors in the last decade, has pledged to use the attorney general’s office not only as a position to litigate, but also to advocate for certain reforms at the state level.
In some ways, her actions will speak louder than words. James will spend the next two months transitioning into the position, which has enormous power to lead investigations and bring litigation based on the office holder’s priorities. Her conversations going forward will center on where she wants the office to focus and whether it has enough resources to accomplish those goals.
“That’s a gigantic office,” said Bernie Nash, co-chair of Cozen O’Connor’s state attorneys general practice. “They only have a very limited number of senior staff that they can bring in and change. They’re going to be getting investigations and recommendations up and down the line. They’re going to convey their priorities.”
Nash knows a thing or two about attorneys general. He founded the country’s first state attorneys general practice about four decades ago at Nash, Railsback & Plesser. He currently chairs the country’s largest attorneys general practice at Cozen O’Connor.
He said that, while James might have an idea of how she wants to structure the office, she will most likely wait until she’s actually in the position before she makes any final calls. For now, she’ll start with a transition team to see whom she wants to bring in on her top staff.
“Typically when you get elected, you create a transition team to have a dialogue with you about the current structure of the office and whether it makes sense,” Nash said. “They might come in with their own preferences where they want to reallocate resources, but until you’re in there I don’t think you’re thinking about how to restructure it, in my opinion. That’s why you create a transition team.”
James is not without allies, both in the legal industry and in politics, but so far she hasn’t given any clues about whom she would like to hire for the office’s top positions. All we know for now is that she would ask Underwood to stay on in some capacity, which Underwood has said in the past she would be happy to do.
James was not available for an interview on Wednesday.