Today’s New York Times laid out some harsh words for the president and his legal future. New York State Attorney General Eric Schneiderman said:
“We try and protect New Yorkers from those who would do them harm. The biggest threat to New Yorkers right now is the federal government, so we’re responding to it.”
And so continues the chess game that is federalism under Donald Trump. In more normal times, prosecutors on the state level would refrain from even discussing hypothetical prosecutions of a sitting president or those around him. State attorneys general would typically defer to the feds – doubly so in instances for which a special counsel has been appointed. But as most of us have come to accept, the 45th presidency is anything but typical. Individual states seem to be mustering their artillery in preparation for the day when Trump takes action against Robert Mueller. Whether that action will take form in the shape of a pardon (or five), or a direct (or indirect) firing of Mueller himself is anyone’s guess – but we do know that New York State plans to put itself on the front lines when necessary. California, led by its Attorney General, Xavier Becerra, won’t be far behind either.
During his New York Times interview, Schneiderman wasn’t exactly bragging about his plans to take down the federal government, saying, that he had “a lot of respect” for Mueller’s work, and that, “watching it from the outside, like everybody else, it seems like they’re doing a very thorough and serious job.” Still, Schneiderman’s message was clear: if an effort to derail Mueller’s work surfaced, New York will do “whatever we can do to see that justice is done.”
Those who are legally informed won’t mistake Schneiderman’s low-key attitude for impotence. The reality is that if a state were to initiate prosecution against Trump or his associates, that prosecution would likely be stronger than the corresponding federal one. For one reason, grand jury proceedings, usually secret, could potentially be unveiled during a state prosecution if that state action were to follow a prematurely stifled federal action.
Of course, as we’ve written many times at Law & Crime, President Trump lacks legal authority to issue a pardon for a state crime. Therefore, if Mueller’s investigation exposes individuals, including Trump himself, to state criminal liability, states like New York, Virginia, and Illinois may find themselves cast as the key defenders of the realm. Russian collusion in the election would almost certainly violate election laws in at least those states, not to mention the 39 others that have potentially applicable laws against election interference.
So it may be that the Schneidermans and the Becerras of America become the forces to ultimately stop the Trump machine in its tracks; such an outcome would be deliciously ironic. Conservative states’-rights enthusiasts would need to twist themselves into unrecognizable shapes to explain why a federal official should not submit to state authority, or alternatively, why a state prosecution isn’t grounds for impeachment. For years, Trump sold himself as the ultimate New Yorker. It’s only fair that the Empire State would be the one to finally take him down.
This is an opinion piece. The views expressed in this article are those of just the author.