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The Attorney General

by Gail Robinson, Oct 23, 2006
 

One hundred and ninety years after Martin Van Buren used the position of attorney general to try to topple the governor, candidates Jeanine Pirro and Andrew Cuomo are trying to topple one another. Over and over again during their recent debate -- 16 times by one count -- Republican Pirro hammered her Democratic rival for a lack of experience, saying that as a junior prosecutor for only 14 months 21 years ago he did not understand the criminal justice system or know how to run a legal operation. And for good measure, she accused him of corruption.

For his part, Cuomo charged that Pirro is under investigation not only for seeking to wiretap her husband Albert, whom she suspected was having an affair, but also for failing to pursue corrupt officials in Westchester County. (Two days later, current Attorney General Eliot Spitzer said there is no such corruption probe.)

Such heated contests are nothing new for attorneys general.

The job was a source of friction between Aaron Burr and Alexander Hamilton. Burr defeated the Hamilton faction to win appointment as attorney general in 1789. The animosity between the two men continued for the next 15 years, until 1804, when Burr killed Hamilton in a duel.

Spitzer's predecessor, Republican Dennis Vacco, got the job after making it clear to any New Yorker who cared and many who did not that his opponent Karen Burstein was a lesbian, something she never sought to hide. Four years later, Vacco lost to Spitzer by a narrow margin but refused to concede until six weeks after Election Day, blaming his defeat on voter fraud.

All this conflict surrounds an office that in the past has been described "a bureaucratic and legal backwater," and "one of the state's least glamorous jobs."

FIGHTING FOR A 'BACKWATER'?

Even the two current candidates, who are spending millions this year to win the office, have not been very excited about the job, at least initially. Cuomo only sought the job after being forced to drop out of the race for governor in 2002. Pirro first tried to run for U.S. Senate this year, and in a taped conversation with Bernard Kerik said that being attorney general is a "been-there-done-that kind of thing."

The Other Statewide Offices

Attorney general is one of four state offices whose occupants are elected by all New York State voters. All these posts are up for election this year:

Governor: Twelve years ago Republican George Pataki scored an upset when he unseated incumbent Mario Cuomo to become the state's chief executive. With Pataki stepping down this year, the race to replace him has seemed a bit muted for a campaign for such a powerful post. Attorney General Eliot Spitzer easily defeated Democratic rival Tom Suozzi in the primary and now has a commanding lead in polls and in fundraising against former State Assemblymember John Faso.

Lieutenant Governor: The state's number two office has little power. It is so obscure that only political junkies or the current occupant's friends or famiy can name her (Mary O'Donohue). The office got a little bit of buzz in Pataki's first term when then Lieutenant Governor Betsy McCaughey Ross raised eyebrows as she stood behind Pataki through 58 minutes of a speech he was making to the legislature. Pataki dumped Ross. In response she switched to the Democratic Party, announced she would run against Pataki and floundered badly.

Just as the vice president runs with the president, lieutenant governor candidates run with governor. This year the Democrats have an unusually prominent candidate for the number two job: State Senate Minority Leader David Paterson of Harlem. Paterson is so prominent many wonder why he would want the job. If he wins, New York would "have affirmed an important principle: An African-American has the same right as anyone else to hold an inherently forgettable elective office," Clyde Haberman wrote in the Times.

His Republican opponent is Rockland County executive Scott Vanderhoef.

Comptroller: Former City Comptroller Alan Hevesi now holds the post of the state top fiscal officer. His re-election campaign garnered little notice until the Republican candidate, former Saratoga County Treasurer Chris Callaghan, found out that Hevesi had used a state employee to chauffeur his wife. Hevesi apologized and reimbursed the state almost$83,00, but the incident has prompted speculation about the integrity of someone entrusted with insuring the integrity of state finances. Despite that, Callaghan/s campaign continues to struggle, with little money or visibility.

The Assembly speaker and the State Senate majority leader, though wielding enormous power throughout the state, are like other members of the legislature elected only by the residents of their districts. The members of the legislature then chose them for their leadership posts.

But however some may disparage the job it certainly has a pedigree -- going back to the days of New Amsterdam when the schout fiscal was appointed by the West India Company to protect the company's interests in the colony and enforce laws and ordinances. And the job seems an essential part of government: Many nations and all 50 states have an attorney general.

Oliver Koppell, who held the office in New York State in 1994 and now serves on the New York City Council, likens talking about the office of attorney general to the old story about blind people describing an elephant. That, he says, is because "it has so many disparate functions that it can be described in so many ways."

Certainly, there are considerable administrative responsibilities. The office has over 500 attorneys and over 1,800 employees, including forensic accountants, legal assistants, scientists, investigators and support staff, and an annual budget of about $224,000,000.

In general, "the state attorney general is the chief litigator defending the state, the counselor rendering legal advice to state officials and the public advocate enforcing law designed to protect consumers, small businesses and the environment," Charles Burson, then attorney general of Tennessee and president of the National Association of Attorneys General once wrote.

The New York State constitution says little about the role of the attorney general beyond how the attorney general is selected (by election the same year the governor and comptroller are chosen) and that he or she heads the department of law. The duties of the state attorney general are set out in state law. These include, though are not limited to:

-- Criminal prosecution: The attorney general does not handle standard criminal cases but does bring cases against people who have misused state money. It can also investigate and prosecute cases of Medicaid fraud and corruption and works with local and federal officials on organized crime.

-- Protect the public interest: The Office of Public Advocacy can conduct investigations and file lawsuits, in areas such as antitrust, civil rights, consumer fraud, environmental protection, real estate and, most recently, internet transactions.

-- Collect revenue: As the state lawyer, the attorney general goes after people who owe New York money, including patients at state hospitals who didn't pay their bills and students at the state university who failed to pay tuition or repay their loans.

-- Defending the state: The attorney general is the legal counsel for the state and for state employees facing lawsuits related to their duties. These cases can range from sweeping suits, such as the Campaign for Fiscal Equity suit challenging the state's financing of New York City public schools, to malpractice cases brought against state hospitals.

This can be tricky when, as is now the case, the governor belongs to one party and the attorney general to another. In the school funding case, candidate Spitzer has said that, if elected, the city schools would get billions more, while Attorney General Spitzer has defended in court the governor's refusal to increase funding. "If you do anything less than that, you're not doing your duty," Spitzer press secretary Dennis Dopp has said.

But despite these various responsibilities, Koppell says, "the most frequent thing is to ascribe to [the office] functions that it does not have." For example, while many attorney general candidates over the years have sought to portray themselves as law and order candidates, the office has little responsibility for prosecuting standard crime; that task belong to local district attorneys.

A BROADER ROLE

But most recent attorney general have gone beyond the strict confines of the office, using their power to take up a variety of causes and filling gaps in the federal government's enforcement of the law. "The attorney general's office is capable of enormous elasticity," one former occupant, Robert Abrams has said. "The occupier of the office exercising leadership and his own degree of activism has the flexibility to move in certain direction."

In the 1920s, Attorney General Albert Ottinger, described as "a forebear to Spitzer in many ways," shut down the Consolidated Stock Exchange and said his legacy had been to "hammer, hammer, hammer at every manner and means of fraud and dishonesty."

Louis Lefkowitz, who served from 1958 to 1977, began taking on consumer protection. His successor, Robert Abrams, continued with that, cracking down on fraudulent and misleading phone and mail solicitations, enforcing the state's lemon law for cars, pursuing mail companies for fixing prices and suing businesses over confusing advertisements.

In doing this, Abrams was stepping into a void left by the federal government, which during the Reagan administration had little inclination to go after companies that hoodwinked or cheated consumers. "From a national perspective, we had a wasteland of consumer and environmental protection n the 1980s. It was critical that the states stepped in," Ed Mierzwinski, consumer program director for the U.S. Public Interest Research Group has said.

Similar, Koppell said that during his own year as attorney general he took up anti-trust actions, blocking a merger bid by Federated Department stores. Anti-trust also held little interest for the Reagan Justice Department.

But most agree that, for better or worse, Spitzer took things up a notch when he assumed office in 1999. "Eliot Spitzer has really pushed the envelope," Koppell said, particularly on issues involving Wall Street. He took advantage of a largely somnambulant state securities law called the Martin Act to go after Merrill Lynch for issuing false and misleading recommendations on stocks. As Abrams had done with his consumer work, Spitzer was filling a gap left by the federal government. "A feckless Securities and Exchange Commission has responded haphazardly to five years of scandal, leaving a vacuum for Spitzer to fill," wrote Daniel Gross in Slate.

He also pursued insurance companies and worked with city green grocers to agree to better working conditions for their largely immigrant workforce.

And, with the federal government under President George W. Bush reluctant to do much about pollution or global warming, Spitzer, along with seven other attorneys general and New York City officials in 2004 filed suit against five of the largest producers of the gases that cause global warming. In a kind of legal understatement, they used common law against creating a nuisance to support their claim. "Global warming threatens our health, our economy, our natural resources and our children's future," Spitzer said at the time. "Under accepted and unambiguous law, a court can order them to reduce their emissions."

Some critics think that during his eight years in office Spitzer has sometimes overstepped the bounds, partly to boost his own political future. "On the one hand, everybody respects that the attorney general filled a vacuum and cleaned up a series of abuses left over from the boom period of the late 1990s," Kathryn Wylde of the Partnership for New York City, a business group, told the Washington Post, "but there's an exhaustion factor that comes into play. . . . Every day it's a new issue."

"The problem with Eliot Spitzer and frankly a lot of the federal prosecutors is, in their zeal to appease public sentiment about various business practices, they've gone extreme," New York defense attorney Edward J.M. Little has said. "Almost any questionable business practice can be labeled a fraud."

WHAT WOULD PIRRO AND CUOMO DO?

The increased activism of attorneys general - in New York and elsewhere - may well continue after Spitzer moves on. "It is a position that is likely to grow in importance as the nation's Supreme Court, increasingly pro-state's rights, is expected to send a greater number of decisions back to the states for judgment," commented the public affairs television program NOW, which has covered state attorneys general extensively.

Certainly both major party candidates to become New York's 64 attorney general have set out ambitious, though widely different, goals.

Stressing her experience as Westchester district attorney, Pirro said one of her top priorities would be going after sexually violent predators. "My mission is to make sure we have civil confinement...to keep them away from our women and children" she said.

But, while expressing concern over sexual violence, Cuomo disputed Pirro's vision of the attorney general's job. "It's not a DA's office. We have 62; we don't need a 63rd," he said."

On the other hand, Cuomo wants to use the office to address political corruption and dysfunction in Albany. "The attorney general should be the chief public integrity officer," he said.

Some critics fault Spitzer for not having done more in this area. But Koppell thinks the attorney general cannot function as a crusader against corruption because it conflicts with one of the office's key roles. "How can the lawyer for state officials investigate wrongdoing by those officials?" he said.

Cuomo would continue Spitzer's policy of, as the candidate phrases it, "sticking up for the little guy" against big banks, corporations and the like. And Pirro and Cuomo agree both say they would use the office to go after Medicaid fraud

So does that make all the campaigning, the attacks, and the swirls of accusations worth it?

The attorney general position does have another thing going for it: Many occupants, including the current one, have tried to use it as a steeping stone. Lefkowitz lost a bid for New York City mayor to Robert Wagner and Abrams failed in his effort to be elected the U.S. Senate. Others such as Martin Van Buren and Jacob Javits, succeeded. Spitzer clearly hopes he follows in their footsteps.

But even if a term or two as attorney general does not lead to loftier public office, there is another reason to take the post Koppell says: "It's a wonderful job...You can make a difference in little ways and big ways."

 


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