Eric Schneiderman and Andrew Cuomo (Mike Groll/AP)
A plethora of questions surround Attorney General Eric Schneiderman's involvement in the Moreland Commission on Public Corruption. Both Democrats and Republicans have called on Schneiderman to reveal all he knows about the commission, to launch an investigation into Gov. Andrew Cuomo's interference, and to pick up where the commission left off in rooting out corruption in Albany.
With the legalities and the politics unclear, pundits wonder what Schneiderman can and will do next in the ongoing Moreland saga. Interested parties are asking if the attorney general (AG) signed off on the abrupt end of the commission and its investigations, and if Schneiderman can pick up on investigations begun by Moreland if he indeed wants to. For all the questions there is one thing experts do agree on: the AG's office has very little constitutional power to investigate and prosecute corruption in state government - and this fact seems to suit both the legislative and executive branches just fine.
"It's the eternal question," says Blair Horner of the New York Public Interest Research Group (NYPIRG): "Did Schneiderman go along with Cuomo's decision to shutter Moreland? Did Cuomo have the power to shut it down if Schneiderman deputized these guys? And if Schneiderman didn't go along with it, did he just appear to while continuing to investigate? We just don't know."
Schneiderman's entire involvement in the Moreland Commission mess, both past and present, remains a question mark as the AG has only commented to say he shouldn't comment - something that is becoming a familiar refrain for many of those involved with the commission, especially now that subpoenas have been handed down from U.S. Attorney Preet Bharara.
Sources close to Schneiderman's office says his role has in some sense been distorted. They insist that Schneiderman did not name nine (of the twenty-two) commission members as has been reported, instead he was tasked with recommending nine who were eventually approved by Cuomo. From there they say he stood back and let the commission do its work - because otherwise Schneiderman, who served in the state Legislature for years, could have been charged with interference, allegations Cuomo himself now faces.
Despite calls for action by those dismayed by Cuomo's actions, legally Schneiderman may not have many hands to play as the state constitution severely limits his power to investigate corruption in state government. The role of the AG is to act as the legal representative of the governor and protect state laws; the AG's office can pursue civil cases of corruption involving public funds, but does not have the constitutional authority to pursue criminal corruption. Unless the Governor directs the AG to do so.
While the Moreland Act gives Cuomo broad authority to appoint a commission to investigate the executive branch, it does not give him authority over the Legislature. To circumvent that, Cuomo brought in Schneiderman to deputize Moreland members so that the commission would have jurisdiction over the state Senate and Assembly.
It's a move that multiple members of the Moreland Commission admit they aren't sure they ever understood the legal implications of.
SUNY New Paltz professor of political science Gerald Benjamin said it is unclear exactly what the deputization means. "The governor could have invoked his capacity to put the attorney general to work on investigating public corruption," Benjamin said. "They made no specific reference to any statute or constitutional provision or law. It seems like they were trying to give people who were already able to investigate criminal acts (district attorneys) the ability to expand their jurisdiction to state officials. But it isn't clear that is what it actually did."
However, Benjamin believes, "the governor did this to involve the attorney general without giving him any power." The tactic Benjamin alleges points to both the rivalry between Cuomo and Schneiderman and the efforts of the governor to make Moreland appear to be more independent than he seems to have actually let it be.
Before Cuomo's favorite threat to the Legislature became the word "Moreland," he was a proponent of promising to give the AG a "blanket referral" to investigate government corruption - and sought this when he was AG. But after taking office Cuomo backed away from that approach and his aides have insisted it is actually illegal.
The question of legality is extremely important when trying to understand what exactly Bharara might look into when it comes to Cuomo's interference with the commission - and in terms of Schneiderman's role.
Cuomo's Democratic primary challenger, Fordham law professor Zephyr Teachout, asserted on Monday that Cuomo did not properly shut the commission down because he did not issue an executive order to end it, and that Schneiderman could continue to investigate corruption in the Legislature as well as Cuomo's interference with the commission's investigations.
"This was a referral to the Attorney General's office, not just a Moreland Commission." Teachout said in a statement. "The Executive Order changed the nature of the investigation. Counter to what the Governor may say or want, he can't just declare an Attorney General investigation over."
A spokesperson for Schneiderman responded to questions on the subject, "Our office cannot comment on ongoing or potential investigations arising out of the Moreland Commission, whether they are being pursued by our office or other prosecutors."
A look at the executive order creating this Moreland Commission shows that there is very specific language detailing who Moreland was supposed to refer cases to. The order states district attorneys may be referred cases as well as the State Police, though the State Police is ultimately controlled by Cuomo. It doesn't appear that the creation of Moreland gives Schneiderman any more power than he had before - which may explain Schneiderman's silence.
Teachout insists Schneiderman is one of the only Democrats in the state with the nerve to challenge Cuomo. "While most elected Democrats have remained silent, the Attorney General has shown a willingness to challenge the Governor in the past, and has the power to continue the investigation - this time looking at the Cuomo Administration's interference in the work of his deputies," she said in a statement. "In the wake of the scandal, Attorney General Schneiderman has the opportunity to take leadership and restore faith in government."
Teachout told Gotham Gazette "it is dangerous" for too much power to be invested in the executive branch and that a strong Attorney General is key to fighting government corruption.
Controversy over Moreland interference seems set to dog Cuomo throughout his re-election campaign and now Schneiderman is beginning to see the commission at play in his.
Thus far, Schneiderman has also remained quiet in the face of blistering attacks from his Republican opponent John Cahill.
"He has an absolute responsibility as chief law enforcement officer of the state to get out there and say what he knew, when he knew it, and what he did about it," Cahill said on Binghamton Now last week. "This is going to be a major issue, not just for the campaign, but for the future of the State of New York."
Schneiderman's office has responded by touting his success in reaching political corruption settlements and noting his office's limitations. "He's done all this despite the absence of original jurisdiction covering public corruption — a statutory weakness he's fought to change — and helped overcome that constraint through an innovative and unprecedented partnership with the state comptroller, Operation Integrity," said a campaign spokesperson.
Schneiderman and Comptroller Tom DiNapoli have partnered to fight public corruption, but their combined powers still don't allow them the kind of power a blanket referral from the governor would infer.
So what is Schneiderman to do now? The likelihood is that he tries to weather the storm, though any action he takes may depend on how much he does know about Moreland and what legal powers his office determines he has. Also how much traction his opponent, Cahill, seems to be getting. Cuomo and Schneiderman may not get along, but for now their fates may be tied together. Early polls have indicated that neither is in much jeopardy in his re-election bid, but after all of the recent Moreland fallout, subsequent polls could begin to tell a different story - and there's no telling what further fallout is still to come.
by David King, Albany editor, Gotham Gazette