It’s Perfectly Normal for Mueller to Call in New York’s AG

It could hardly be otherwise under our two‐​level system of prosecution, under which patterns of misbehavior can readily generate both federal and state offenses.
September 1, 2017 • Commentary
This article appeared on New York Post on August 31, 2017.

“Mueller teams up with New York attorney general in Manafort probe,” Politico reported Wednesday. Commentators went wild.

What could be more exciting than for the special counsel investigating the Russian matter to team up with noted Trump foe Eric Schneiderman? Neither the president nor Congress can lay a glove on him; some of the legal weapons he wields go beyond what Mueller has at his disposal; and if Schneiderman obtains convictions in state court, Trump will have no pardon power. It’s like two superheroes with coordinating capes and powers!

Around liberal Twitter, it was a total game changer. “THIS IS BIG!!!!!!” typed Amy Siskind of New Agenda, hailing the sort of news for which four or five exclamation points won’t do. “What’s Russian for ‘Trump’s goose is cooked?’ ” crowed Harvard’s Laurence Tribe.

In the opposite camp, the Trumpian claque at Breitbart argued that with the combative New York AG on board — Schneiderman has long feuded with Trump, and is widely disliked by Republicans — the whole Russian probe can be dismissed as tainted. The connection “undermin[es] the integrity and impartiality of Mueller’s inquiry,” wrote Joel Pollak. “There could not be a more inappropriate person to be seen working with Mueller.”

Both sides should calm down. Yes, the cooperation between the feds and New York is an important side of the story. What’s absent is a real indication that much new or unusual is afoot.

Federal and state prosecutors are supposed to cooperate when investigations overlap. That’s what they do. From the little that has been pinned down so far, it’s hard to see that they’re cooperating in any way they wouldn’t be if persons other than Mueller and Schneiderman were in charge.

It’d be one thing had Mueller gone shopping for help to some state with little connection to the Russian affair. But as the locus of the Trump organization and campaign, New York is at the center of the probe, even if other states have connections, too.

We know that the Trump Tower meeting attended by Donald Trump Jr. is a focus of the probe because Rinat Akhmetshin, one of its participants, spent hours recently testifying before Mueller’s grand jury.

As lawyer and commentator Renato Mariotti pointed out on Twitter, federal prosecutors “routinely” provide their state counterparts with evidence of possible crimes committed under state law.

It could hardly be otherwise under our two‐​level system of prosecution, under which patterns of misbehavior can readily generate both federal and state offenses. Conversely, state law enforcers looking into violations of state law may come upon evidence that federal law has been broken, and they, too, routinely share such information with their federal counterparts.

The US attorneys’ handbook, which Mueller would be expected to follow, provides expressly for sharing federal grand‐​jury evidence with state and local law enforcement when it points to such crimes. Were Mueller to step down or be fired tomorrow, his successor would be called on to “team up” with state counterparts in this same way.

Let’s review the bidding. In the aftermath of Trump’s pardon of Arizona sheriff Joe Arpaio following a federal contempt conviction — which sent ripples of dismay deep into Republican legal circles — a lot of us are looking for reassurance that the chief executive can’t pardon every offense his backers might commit.

And that reassurance is right there in the Constitution, which makes plain that the president has no power to pardon crimes under state law. Nor can he fire state law‐​enforcement officials like Schneiderman.

It’s believed that part of the Paul Manafort probe (in which Manafort denies all wrongdoing) involves possible violations of money‐​laundering laws, and other financial charges may surface. Under New York’s unique Martin Act, its attorney general wields unique financial investigatory powers.

As I wrote for these pages in 2011, the Martin Act is a virtual “blank check for the prosecution” that gives New York’s AG “super‐​broad powers to investigate and press charges against alleged financial fraud.” In particular, he can “subpoena witnesses or demand the production of documents without probable cause or a grand jury’s say‐​so.” He can also leak things he finds, or keep them private, as suits his whim.

These powers go too far and should be rolled back, but the Schneiderman‐​Mueller cooperation appears to fall squarely within them.

Everyone seems to be getting excited over a system working normally.

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