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Why Schneiderman’s Replacement Matters

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President Trump was undoubtedly happy to learn on Monday of the shocking accusations against, and rapid resignation by, New York’s attorney general, Eric Schneiderman. He was a longtime adversary of Mr. Trump, both rhetorically and in the courts. But more than that, Mr. Schneiderman’s former office is a key part in the backup scenario of state prosecutors taking over should Mr. Trump shut down federal investigations into him and his associates.

That fails-safe has now suffered a blow. While Mr. Schneiderman’s resignation was the only appropriate response to the appalling claims against him, consideration of this backup plan is critical as the New York Legislature considers an interim replacement. It’s not just about getting a good lawyer in the job; it’s about finding the person with the right mix of prosecuting experience and constitutional law expertise.

There are a variety of ways that Mr. Trump might seek to frustrate the federal investigations: He could have the special counsel, Robert Mueller, fired. Or he could fire Deputy Attorney General Rod Rosenstein, who oversees Mr. Mueller’s investigation as well as the one into Mr. Trump’s attorney, Michael Cohen. If Mr. Rosenstein were removed and replaced with a Trump crony, that individual could choke off both. Or the president could issue broad pardons for himself and his associates.

It in response to this last strategy that the New York attorney general comes in: Mr. Trump’s authority to pardon “offenses against the United States” does not extend to state crimes.

Mr. Cohen’s situation is instructive, as we explain in a new paper about the possible pardon strategy. Press accounts suggest federal prosecutors are looking at whether he may have misled his lender in connection with borrowing funds to make the $130,000 payment to the performer Stormy Daniels. That could, if proven, constitute federal bank or wire fraud. But his main place of business is in New York, and the New York State penal code also governs the financing aspect of Mr. Cohen’s actions. It specifically prohibits fraud in refinancing or modifying residential mortgage loans.

New York has other laws that might apply as well, such as those barring conduct involving “intent to defraud more than one person” or “to obtain property from more than one person by false or fraudulent pretenses.” And Mr. Cohen’s payments to other women, and his other business practices, are also reportedly under scrutiny, with new revelations coming by the day. They could substantiate additional


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