Palumbo Disappointed In AG Underwood Using Office for Political Stumping

A Legislative Column from Assemblyman Anthony Palumbo (R,C,I,Ref-New Suffolk)
June 4, 2018

A little more than a week ago, we in the Legislature appointed acting Attorney General Barbara Underwood to serve as the interim replacement for Eric Schneiderman, the disgraced former attorney general. We reviewed several candidate applications; however, the resume of Ms. Underwood seemed to be unmatched. She was a law clerk for Thurgood Marshall, a former assistant district attorney and chief of the Appeals Bureau, solicitor general in the U.S. Attorneyís Office, solicitor general of New York and she argued many cases before the U.S. Supreme Court. In addition to her outstanding qualifications, the choice made further sense for continuity in the office and in light of the fact that she was not seeking the nomination to run for the position in November. I was convinced that politics would finally have no place in the attorney generalís office. Quite frankly, I believe politics was a big part of Mr. Schneidermanís office, as he was clearly posturing for governor with virtually every move. Accordingly, I voted for Solicitor General Underwood and was thrilled to do so.

As a former prosecutor, lawyer and son of a homicide detective, Iíve experienced stories about law enforcement my entire life. Iíve prosecuted cases ranging from marijuana possession to rape and homicide, and subsequently became a member of the New York state Legislature. With all of that under my belt, I thought we really did the right thing for New Yorkóuntil today.

This morning, while catching up on the news cycle, I almost fell out of my chair upon reading that the freshly-minted top prosecutor was calling for passage of a bill that would eliminate the Fifth Amendment Right against double jeopardy in light of President Trumpís pardon of Dinesh DíSouza. This constitutionally-mandated right is the single-most important (and deeply-rooted) safeguard in American society to protect our citizens from tyranny, yet she thought it shouldnít apply to someone who received a pardon.

This was interesting, as Mr. DíSouzaís conviction was for violating campaign finance laws while contributing to Wendy Longóa Minority candidate for U.S. Senate. I thought to myself, where was the outrage when Gov. Cuomo decided to unilaterally pardon 35,000 convicted felons so they can vote? That was an offensive exercise of the pardon power, yet we didnít hear a peep. The ability to pardon is also a constitutional privilege the executive enjoys and regardless of how egregious it may seem, there was nothing we could do about reverse Cuomoís pardon. The law is clear and the U.S. Constitution trumps anything we do on the state level, yet there she was trumpeting on high.

A little more background might amplify my point. In the wake of the Eric Garner incident a few years ago, the Assembly proposed a bill to allow for a second subsequent criminal prosecution of police officers in the event of a death to someone in custody. I debated this bill and the sponsor admitted that successive or consecutive prosecutions could take place on the state level for the same incident, in clear contravention of the double jeopardy clause. Despite the obvious unconstitutional nature of this bill and our legislative oath to uphold the constitution, the anti-police sentiment was high at the time and it passed the Assembly quite easily. It is important to note that in my tenure, the New York State Assembly has always been quite reluctant to enhance criminal penalties on anyone, with the exception of police officers and conservatives.

Today, however, Interim Attorney General Underwood channeled the anti-Trump movement and began openly lobbying for a bill proposing we declare that any crime for which a par-don is granted, the double jeopardy clause does not apply. This clear violation of the fifth and fourteenth Amendments is obvious to most, let alone a former law clerk to the Supreme Court and appellate attorney with the experience and intellect of Ms. Underwood. As such, the only logical reason for such a proclamation can only be pure politics. I have to admit that Iíve seen many statements from politicians about issues they know will never become law, but they still say it with a straight face to arouse their base-voting block. Itís shallow, vapid and completely dishonest, but, hey, thatís politics, right?

The bottom line is the attorney generalís office is part of the Executive Branch, not the Legislative Branch. They donít make policy, they simply follow it and political posturing by any prosecutor is just plain wrong. In the end, Ms. Underwood is only going to be in that role for a few more months, so I pray for this great state with a heavy heart. In November, the electorate must choose an honest, apolitical prosecutor who will do his or her job, not look to higher office, and who will completely stay out of the lobbying business.