When Letitia James is sworn in as the next New York attorney general as scheduled on Jan. 1, she will inherit something the last person elected to the position did not: a huge caseload aimed at a federal government that some say has encroached on the well-being of New Yorkers.
James, unlike former Attorney General Eric Schneiderman, will take office during a time when Democrats are positioned to control state government but will still face obstacles from federal officials.
Take the federal tax law passed last year that limited the deductibility of state and local taxes to $10,000, an amount easily surpassed in such areas of New York as Westchester County and Long Island. New York is leading litigation against the cap on those deductions, but a resolution isn’t expected anytime soon.
Schneiderman, who resigned in May when reports surfaced of violent behavior toward women, didn’t have to bring that kind of litigation for the state when he took office in 2011, during the Obama administration, which was seen as far more amenable to New York’s interests.
But James is set to become the state’s top lawyer in the third year of the Trump administration. New York attorneys general, starting with Schneiderman, took aggressive legal action against the Trump White House.
That continued when Underwood took over in the wake of Schneiderman’s downfall.
Underwood brought the office’s lawsuit against Trump and his charitable foundation, the Trump Foundation, for example. That litigation has arguably been the most talked-about lawsuit from New York against a federal official in the Trump era.
The lawsuit alleged that Trump illegally used his foundation to settle a series of self-dealing transactions and to host a fundraiser for veterans groups in conjunction with his 2016 presidential campaign. The state is seeking $2.8 million in restitution from the foundation and to ban Trump and his children from serving at a nonprofit organization in New York for several years.
James has vowed to continue the lawsuit against the Trump Foundation, and has pushed for the Legislature to pass a law removing what’s called double jeopardy in New York. That’s a part of the statute that prohibits state prosecutors from charging someone with a state crime based on the same set of facts used to prosecute them on a federal level.
The law would allow state prosecutors, for example, to charge someone who Trump has pardoned before they’re prosecuted in federal court. The law wouldn’t apply if that person has already been prosecuted since double jeopardy is attached at the start of a trial. So, someone such as Paul Manafort would likely not be subject to state charges on the same set of facts if Trump decides to pardon him.
It’s a law that her office may need in the future if Trump begins to hand out pardons for those in his inner circle, especially when it comes to the Trump Foundation case. The state Department of Taxation and Finance said earlier this year that it was conducting a criminal inquiry into the foundation and would refer its findings to the state attorney general’s office if anything comes of it. In New York, the attorney general’s office cannot independently investigate a potential crime without a referral from an appropriate agency.
The Trump Foundation case is the only litigation that the state currently has against the president, personally. The rest of it has been against members of his administration or Congress, which has been entirely controlled by Republicans since Trump took office. Democrats will have a majority in the House of Representatives in January.
Consider the ongoing lawsuit against the U.S. Commerce Department over its decision to ask about citizenship on the next decennial census in 2020, The action, announced in March, was quickly followed by a federal lawsuit led by Underwood’s office, which was joined by attorneys general from more than a dozen other states.
That litigation recently went to trial in Manhattan and a decision is expected any day from the trial court, possibly before James takes office. But that won’t be the end of the litigation. A discovery issue in the case will be argued before the U.S. Supreme Court in February, which could lead to an appeal of the trial court’s decision.
James will also inherit a handful of high-profile cases in which her office is tasked with defending the state against litigation.
Chief among them is a lawsuit against Gov. Andrew Cuomo and Department of Financial Services Superintendent Maria Vullo from the National Rifle Association. The group alleged earlier this year in a complaint that official actions by Cuomo and Vullo may cause it irreparable financial harm, which could inhibit its ability to advocate on behalf of gun owners in New York.
A federal judge recently denied a motion to dismiss the lawsuit from the state, which has argued that Cuomo and Vullo’s actions were protected as government speech and were never intended to harm the organization.
Then there’s the lawsuit against the state over New York’s law that legalized daily fantasy sports in 2016. Albany County Supreme Court Justice Gerald Connolly struck down the law in late October, calling daily fantasy sports a form of gambling, which is illegal in New York unless expressly legalized through an amendment to the state constitution.
The case will likely be one of the first that James considers when she takes office. Arguments in the case to decide if the games will continue legally while the state appeals Connolly’s decision are scheduled the same week James is sworn into office.
James has largely indicated that she will continue on the same course as Underwood in the state’s litigation strategy, but she also plans to ask the state Legislature for more power when it comes to cases of public corruption. The office is currently only allowed to pursue criminal charges with a referral, which is a practice James has asked to be eliminated.
James said earlier this year that she’s already spoken to Democrats in the Assembly and Senate about expanding the attorney general’s power, but leaders from either chamber have not said publicly if they will grant that request.
James is set to take office in the first week of January. She was not immediately available for an interview.