After Another Scandal, Legislature Required To Fill Attorney General Vacancy

May 18, 2018

Just when you think things can’t get worse, they do. This month, Albany was hit with yet another scandal when Attorney General Eric Schneiderman resigned only hours after it was reported that several women had made accusations that he had been physically abusive to them. While, as far as we know, the allegations are not related to his official duties, due to the seriousness of the claims a quick resignation was wholly appropriate, and a full investigation needs to be undertaken. In the meantime, the question of who will replace Schneiderman has preoccupied Albany.

Article V, Section 1 of the state constitution provides for the filling of vacancies in the offices of Comptroller and Attorney General. In short, the constitution provides that the Legislature shall fill the vacancy for a period until a new Attorney General is elected during the same election as the election for Governor. In this case, that election is this fall. Neither the state constitution nor any statute provides a timeline but for a variety of reasons, it has been decided that the Legislature will move fast in filling the vacancy.

As part of the process for determining an interim Attorney General, a legislative panel was created to interview candidates for the position. I was honored to be appointed to the 12-person panel and this past week, in public session, we interviewed 13 candidates for the position. Every candidate interviewed held impressive legal credentials and, for the most part, I felt all could, from a legal perspective, handle the position on an interim basis. In my questioning, what I was most focused on however was whether the candidate planned to run for the Attorney General this fall and whether he or she understood that their job as the interim Attorney General was to be a placeholder and not to use the position for political ends.

It was important to me that the candidate did not plan to run for Attorney General in the fall because running as an interim Attorney General would give the candidate a leg up in the general election. Since it is a legislative appointment, giving any candidate an advantage in the general election would smell like a backroom deal cut in the legislature and generally undermine the office of Attorney General.

Also, the interim Attorney General should not pursue political causes. It has been noted that Schneiderman was one of the most political attorneys general in New York’s history. He pursued claims and lawsuits far afield of what people might think are within the traditional role of a state Attorney General. Having been elected by the people of New York, an argument can be made that he had the right to do this. However, being so political undercut the prosecutorial power he used because it was rightfully assumed that he was using that power for a political end. In any event, the next Attorney General, because he or she will be appointed, should do everything in their power to appear and be non-political. This would reinforce that they are a placeholder managing the office until a new Attorney General is elected.

It is likely that when the legislature reconvenes the week of May 21st, we will vote on who shall be the next Attorney General. I will make sure my colleagues in the legislature understand what the panel learned in our interviews and I am confident that we can choose a candidate who will be a competent placeholder for the position. If you have comments regarding these or other state issues, please contact me. My office can be reached by mail at 200 North Second Street, Fulton, New York 13069, by email at barclaw@assembly.state.ny.us, or by calling (315) 598-5185. You also can find me, Assemblyman Barclay, on Facebook.