Underwood May Be Calm, Professorial, But She Has Charged Into AG Role
Barbara Underwood makes it clear she has no intentions of dialing back the office's efforts during her historic tenure as AG.
June 18, 2018 at 06:00 AM
7 minute read
The original version of this story was published on New York Law Journal
To those who feared the New York Attorney General's Office would suffer a drop in energy in the wake of Eric Schneiderman's sudden departure in May, last Thursday's news provided an emphatic answer. On that day, Attorney General Barbara Underwood leveled claims the Trump Foundation should be dissolved for self-dealing and other improper actions under state charity laws. The suit, in Manhattan state court, seeks to dissolve the foundation, $2.8 million in restitution and bar Trump from serving as the head of New York nonprofit for a decade. To no one's surprise, President Donald Trump took to Twitter to accuse "sleazy New York Democrats" in the office of waiting two years before Schneiderman's "disciples" brought the case. Underwood's low-key response to Trump's tweet framing—and flaming—the suit as an illegitimate partisan legal attack spoke to her background as an academic used to explaining the law and as a veteran attorney who's spent years applying it at the highest levels. "That's a mistake," Underwood told the New York Law Journal during an interview in the AG's new offices in Lower Manhattan. Sitting behind her newly-installed desk, Underwood's calm demeanor reinforced the impression of a veteran attorney becoming accustomed to a role normally filled by a politician, rather than the other way around. Trump's interpretation of events were countered by a lawyer's steady breakdown of the process. Far from breaking new ground, the charges against the Trump Foundation were routine in nature, not unlike others that the attorney general as overseer of the state's charities laws commonly brings against nonprofit organizations that mishandle funds. In a follow-up email, the AG's office pointed to more than a dozen cases in recent years that were brought under similar circumstances. "From an enforcement point of view, this was just completely consistent with our enforcement history and practice," Underwood said, adding that bringing the case was the opposite of a partisan political move. "I think it would have been political to decline to bring a case merely because the charity was run by a person who had become the president of the United States," she said. If there can be a debate about the nature of the suit against the Trump Foundation—announced just before the much-anticipated Federal Bureau of Investigations inspector general's report on the handling of the department's investigations ahead of the 2016 elections, on the president's birthday no less—it is the opposite case that Underwood would be anyone's disciple. Underwood was nearly universally praised ahead of her bipartisan selection in May by the New York Legislature to head the office until a new attorney general is elected and installed at the end of the year. Her remarkable resume includes positions with multiple New York City district attorneys' offices, the U.S. Attorney's Office in Brooklyn, as well as eventually becoming acting solicitor general of the United States. She clerked for U.S. Supreme Court Associate Justice Thurgood Marshall and has argued before the nation's highest nearly two-dozen times. In between serving in government, she found time to become a tenured professor of law at Yale Law School and has taught at New York University School of Law and Brooklyn Law School. She served in the AG's office as solicitor general for New York since 2007. That position, as the state's chief appellate attorney, put Underwood in a unique position to advise and consult on much of the office's legal issues. Being involved early on in cases, Underwood noted, helps avoid appellate issues down the road. This, as she told members of the Legislature ahead of her selection to lead the office, was arguably her biggest advantage over other candidates seeking the position. This, more than anything, has led to steady continuity in the days and weeks since Schneiderman's departure. "I don't feel as if I have come with a mission to change anything, because I have had a substantial role in charting the course of the office already," she said. This did not mean that she didn't see her tenure as simply a continuation of everything from before. "I'm a different person. I'm not striking off in a new direction, but it's possible I might do some things differently," she said. Yet those hoping for a forceful departure from her predecessors' focus in recent years on issues like the environment, labor issues, immigration, reproductive rights and the host of Trump-era battles over federal policies are likely to be disappointed. "It seems to me that rejecting immigrants is rejecting the very meaning of America," she said. "For that reason, it seems somehow particularly important to try and protect immigrants and their families from the apparent rollback of that welcome." The difference between Underwood as veteran attorney rather than consummate politician is evident in the framing of these actions—less as in opposition to a specific target in Trump and more as simply the business of the office. "I don't see the office as a political actor, but of the enforcer of the law," she said. "It turns out that we have a lot of cases against the federal government, and I certainly don't shy away from that. But the importance of the cases is for the legal rules and rights that we're vindicating. If it happens that the federal government is the source of the problem, then we'll sue the federal government. And if it happens that somebody else is, then we'll sue them." For those who know her, this response is vintage Underwood. A dedicated public servant who held positions under Republicans and Democrats alike, she has continually opted to stay out of the political sphere herself. Steering clear of electoral politics has been, for her, a position of strength in a time of recent need. She says she doesn't know if the Legislature would have allowed her to stay on, had she shown an interest in running to be the next AG. It's just not something she says she has interest in. "I don't think that politics is my talent or my temperament or my taste," she said. "Running for office involves a whole set of skills and activities that are not my strength. I guess that's how I'd put it." In November, New York voters are set to elect a new attorney general. Shortly thereafter, Underwood will be out of the role. Yet she's already managed to make history as the first female attorney general. She acknowledges breaking that glass ceiling with a mix of personal satisfaction at getting to be a first—being the fourth female Supreme Court clerk and second tenured Yale Law School faculty not quite making it—while expressing amazement that it was still possible to have the distinction. "We should be way beyond firsts by now. We should be getting to the time that it isn't noteworthy," she said. "So I guess I'm enjoying being the first and hoping that will, in my lifetime, stop being noteworthy and be a matter of course instead."
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