Q&A: Zephyr Teachout and Trump’s Vulnerability to State Prosecution

AP Photo/Mary Altaffer

New York state attorney general candidate Zephyr Teachout stands across from Trump Tower

New York Democrats will be presented with a tantalizing question on September’s primary ballot: What might one of the leading progressive experts on combating corruption accomplish with the investigative and prosecutorial powers of the state’s attorney general’s office, especially given that the Empire State is the home base of the Trump family’s business empire and “charitable” foundation?

Fordham legal scholar Zephyr Teachout presents herself to voters as the perfect candidate for our times. When the jury convicted former Trump campaign manager Paul Manafort on eight criminal counts and Manafort signaled cooperation with prosecutors to shorten an expected prison term, Teachout tweeted:

"If Donald Trump pardons Manafort, the federal pardon would not cover state crimes. As AG of New York, I will investigate and pursue any state law violations to be ready for Trump trying to protect himself with a pardon. We have to be totally clear that no one is above the law."

In 2014, the same year she gave New York Governor Andrew Cuomo a surprising run in his Democratic primary, given his family’s legacy and prolific fundraising capacity, she published a comprehensive history of political malfeasance titled, Corruption in America

Days after Trump’s election, Teachout started working on a lawsuit charging that the president is violating the Constitution’s Emoluments Clause. She says that after an important ruling for the plaintiffs in that case, “I was really proud because this is an area that I've been writing in for some time. And I felt quite vindicated that an argument that I've been pushing for now about a decade really got a nice hearing in this decision.”

According to the most recent Siena College poll of the four-person race to be New York’s highest law enforcement officer, Teachout is trailing another impressive progressive candidate, New York City Public Advocate Letitia James. But with more than four out of ten New Yorkers still undecided, the pollsters say the race is still wide open. And Teachout’s candidacy got a potentially huge boost this week when the New York Times editorial board endorsed her, characterizing her as “an independent-minded lawyer” who could be Democrats’ “most effective champion for democracy and civil rights, good government and the environment, workers’ rights, fair housing, and gender equality.”

I caught up with Teachout in late July to talk about how she’d wield the rule of law against Donald Trump’s lawless presidency and Albany’s endemic corruption. The transcript below has been edited for length and clarity. —Joshua Holland

Joshua Holland: Zephyr, before we get into your campaign for the attorney general’s office, I want to ask you about a ruling handed down last month in a lawsuit that you're involved in, which could potentially be a big deal. Can you give a brief rundown of what happened with the emoluments suit brought by two attorneys general against Trump?

Zephyr Teachout: Yeah, there was a major decision that could lead to Donald Trump being forced to give up his hotel in D.C., and it’s likely to lead to other states joining and eventually Donald Trump having to divest all his business interests. 

President Trump is taking foreign money through his businesses, which is in violation of the Emoluments Clause of the Constitution. For example, the Chinese government is a major lease holder in Trump Tower in New York City. So the Chinese government is putting cash into Donald Trump's pockets.

Trump is also taking state government money through entities with state projects visiting his hotels or using his facilities. That's also in violation of another parallel Emoluments Clause in the Constitution.

Three days after Trump took office, I became one of the lawyers on a lawsuit that is still ongoing. We represent restaurant professionals and hotel professionals who are competing with Trump for business while he's violating the Constitution. These lawsuits were brought by the Maryland and D.C. attorneys general saying, "Hey Trump, you are violating the Constitution and it's got to stop."

So this early significant ruling was related to the question of what an emolument is. This is a term that had never before been defined in federal courts. This is a huge case of first impression, what constitutes an emolument. And essentially what Trump's lawyer said is that it’s only illegal is if it's a bribe. It's not just about money flowing, there has to be some kind of a quid pro quo exchange. I'm being a little superficial on the arguments, but I want you to understand the gist of it.

And what the Maryland and D.C. attorneys general said, which is something I have been arguing since I published an op-ed in The New York Times seven days after Donald Trump took office, is that the reading of the text and context and purpose of this clause makes it clear that a benefit that is flowing to a federal officer is an emolument.

And the court agreed and that's a huge deal because, yes, we need to go to discovery and find out all the details, but on its face this court said that if you match up that legal definition and the facts as we already know them, then Trump is violating the Constitution.

This gives us a segue into the AG's race. Arguably, the most important question at this point in time for a candidate for this office is this: We have an erratic president who appears to flout the law in Washington. He enjoys impunity by congressional majority. Republicans on Capitol Hill are too intimidated to provide real oversight, to hold hearings, get into the nitty-gritty of what's going on with this regime. He hasn't disclosed his taxes, etc. 

The disgraced former New York Attorney General Eric Schneiderman had a reputation of being aggressive with the Trump regime. Do you think that reputation was earned, and how would you differ in your approach?

Thanks for that framework and I just want to underline something about it and then I'll answer your question. People know that there's all kinds of problems the legality of the Trump administration. And there's a tendency to look understandably to [Special Counsel Robert] Mueller as the representative of the institution that can do something about it. But it's really important to understand that state AGs—and in particular, the New York state attorney general—can do things that Congress can't do, that the Senate can't do, that a blue Congress can't do, and that state governors can't do. Based on news reports, there's strong reason to believe that there's a lot of illegality in [Trump’s] businesses and in the Trump Foundation. So the New York state AG has a unique ability to essentially follow the money and ask questions, sue, and, as appropriate, prosecute for illegal behavior related to the Trump Organization and the Trump Foundation. 

I think sometimes people see our only options for accountability as Mueller or a blue Congress. But in fact, the New York state AG's office is a critical backstop for law at this moment when Trump and the administration appear to be lawless.

So Schneiderman rightly had a reputation for being a leader on critical lawsuits against formal actions of the Trump administration. And that is something that [current Attorney General] Barbara Underwood has continued with extraordinary vigor. She’s somebody I admire enormously, she's a total powerhouse. Just to give a few examples, there are lawsuits pending against the EPA’s rollbacks, and lawsuits against the Muslim ban. Underwood recently sued to stop family separation. There have been 100 or so lawsuits saying that what the administration in its formal role is doing is illegal. We need those, and as attorney general I would absolutely pursue them.

The area where I pressed then-Attorney General Schneiderman, from the beginning of the Trump administration, is in going after Trump's businesses. So it’s not just about targeting the president in his formal administrative role, but rather in his ostensibly private role. 

It's not just the emolument suit. The attorney general of New York state has a special authority and responsibility to preserve the integrity of businesses and nonprofits in New York under the state’s own laws as well as under the U.S. Constitution. That includes the power to investigate lawlessness, restrain it, and in extreme cases, dissolve corporations or dissolve foundations.

So just a month after Barbara Underwood took over from Eric Schneiderman, she brought a lawsuit along these lines, a lawsuit seeking to dissolve the Trump Foundation. I think I should note that she's not running in the fall. If and when I win, I will definitely ask her to stay on as solicitor general. 

I think the simplest way to understand it is that some lawsuits are shields and some lawsuits are swords. Some are shields against illegal behavior and they're absolutely critical, but we also need to use the law as a sword and go after the heart of Trump's power, which is his foundation and his businesses. 

That’s an excellent metaphor, very clear. Do you see a potential scenario where Trump has to choose between his office and his extensive business holdings? Is that a possible end game?

Yes, and it has been very clear since his election that the Constitution requires exactly that. He must fully divest his business interests so that there's a true blind trust, not a fake blind trust. There has to be no possibility of a foreign government being able to basically pass cash to the president. Because right now there’s a radical question after every single one of Donald Trump's statements about foreign policy. There’s a question about every single trade decision, about every single military decision, about every single procurement decision. It radically destabilizes any sense of confidence around national security and trade to have foreign money flowing to our president's pockets. So it is a reasonable and constitutionally mandated choice. It’s a choice that I and many others urged him to make prior to holding office. 

If you were to pursue this kind of lawsuit, I presume that you would be able to get your hands on Trump's tax returns in discovery?

I don't want to define the specific elements that would come through in discovery or in a discovery fight. But let me just speak as a citizen. As an ordinary person, I find it outrageous that we do not know the flow of money and that we have not had his tax returns. 

But broadly speaking, in the context of an emoluments lawsuit, you need to know where the money is flowing. And that's what people are looking for when they're looking for the taxes.

Absolutely and let me just remind readers that Donald Trump promised that his business would not cut any foreign deals while he was president and has just blatantly gone back on that promise, repeatedly. 

And one of the things I want to underline is that the role of attorney general changes with the context. When Ronald Reagan came into office, Bob Abrams was the attorney general of New York state. Up until then, the job had been primarily defending the state. And that's still a substantial part of the job. But he and his office really stepped up and said, "OK, if Reagan's going to stop protecting our air and water, I'm going to pursue it." And he really turned it into an offensive office as well as defensive one. It was the regulator of last resort.

We are in a moment now where the context is also changing the job of attorney general. And my whole life I've been focused on questions of anti-corruption laws, on constitutional law, and it's essential that the power of this office be maximized to stop corruption at the national level. And also in New York, as your readers may know, we have our own corruption problem.

Zephyr, you keep giving me perfect segues because I wanted to shift the discussion to New York. Last month, Sheldon Silver, the former speaker of the New York State Assembly, was sentenced to seven years in prison for basically selling his office for millions in kickbacks and bribes. He also covered up allegations of sexual harassment in the capital. 

And I think the media love the storyline about this leftist insurgency fighting the centrist establishment, but where I live, I know a lot of people who aren't that political but are sick and tired of the seemingly never-ending corruption in Albany. I genuinely don't understand how the state of affairs has persisted for so long. Let’s return to the idea of the rule of law being a shield and a sword. How would Attorney General Zephyr Teachout address this persistent, dogged problem in Albany that I think undermines the whole progressive project?

It does undermine the progressive project and it's directly hurting people. People are rightly sick and tired of it, and they tend to check out, which is one of the most dangerous things that can happen.

But before we talk about what we can do about it, I just want to remind people that corruption leads to poverty, corruption gets in the way of good jobs, corruption gets in the way of clean air and water. One of the cases this year involved somebody close to Governor Andrew Cuomo, Joe Percoco, who was convicted for helping a company build a dirty power plant. So because of his corruption, people are stuck with that power plant going forward, despite the health risks. 

Or consider the trial that recently ended around the “Buffalo Billion” development project. This was a bid-rigging trial. Part of the scandal was about $750 million of state money going to major donors, instead of going to places that desperately need economic development. So in Utica, you have an average family salary of $30,000 a year. They're desperately looking for economic development, and that money was supposed to go to them. And instead, it went to big donors. So the costs are extraordinary. 

And so is the cost of covering up sexual harassment. A large number of women come to Albany with big ideas, incredible talents, and a determination to serve the public, and are then harassed, abused and in some cases, raped. That's what Shelly Silver was involved in covering up. And too often, the victims are not only pushed out, but when they complain they’re demeaned, and sometimes fired.

As for what should be done, New York state should be the living counterexample to Donald Trump's America. This is another example of where the role of attorney general changes with the context. Ideally, Albany could police itself, but it just can't. There's been effort after effort, some with greater and lesser degrees of sincerity.  

For readers who are not familiar with New York state government, Zephyr is referring to the fact that during virtually every session they'll put together various anti-corruption packages with a lot of fanfare and it always goes nowhere. Officials are arrested, and thrown in jail and politicians from across the ideological spectrum say, "This time we're really going to get serious about it." But they never do, and this has been going on for as long as I can remember. 

That’s right. I think there's a sense for folks elsewhere in the country that New York's pretty blue and must be pretty progressive, and they must be shocked to learn about what's actually happening in our government. 

So let me return to context. In some states, the attorney general is appointed, but in New York state it’s an independently elected position. The New York attorney general has an obligation to the people first, to her conscience and to the rule of law, not to the governor, and not to the legislature.

And because of this ongoing scandal, the attorney general really needs to be leading the fight in investigating and prosecuting corruption and investigating and prosecuting sexual misconduct. And that is what I would do as attorney general. 

Right now, there's an agency in New York that's supposed to oversee corruption and sexual misconduct and instead it's a classic example of an agency that's protecting those in power. It isn't really investigating graft and it actually has been fairly dismissive towards victims of sexual harassment who've come forward.

I would make investigating corruption in Albany a priority. I know that doesn't make me a lot of friends at the pinnacles of power in Albany right now. But that's why we need a truly, truly independent attorney general.

There are four candidates running for this office. I'm the only one who in the short two months since the campaign started has directly called out Andrew Cuomo's own role in this. 

Once again, you give me a segue. You should just interview yourself. I don't want to ask a lot about the horse race, but as you mentioned, you're running in this four-person field. Leecia Eve is a former lobbyist and aide to Andrew Cuomo. She has a lot of old Clinton hands supporting her. Joe Trippi is working on her campaign. She’s associated with that wing of the party. 

There’s Representative Sean Patrick Maloney. I will editorialize here for a second and just say that personally, I think his run is irresponsible because he represents a competitive district. And if he were to win, he'd kind of leave Democrats scrambling to get a new candidate lined up to replace him. Incumbency is an advantage and Democrats would lose that leg up in New York's 18th District, and they could very well lose the seat as a result.

But I want to ask you about your fourth opponent, New York City Public Advocate Letitia James. And I was speaking with a friend here the other day and she said something to the effect of, "I love Zephyr Teachout but I don't understand why she's running against Letitia James, who is a solid progressive with a pretty strong track record." James comes from the progressive wing of the party, if you will, and she has a shot at becoming the first African American woman to win statewide office. How would you respond to that? 

Look, I’m running because I believe that I bring a unique background, especially in anti-corruption law and constitutional law. What folks may not know is that I actually started my career as a death penalty lawyer and I also care passionately about using the office of attorney general to fight for criminal justice reform—for ending mass incarceration cash bail.

And one thing I haven't mentioned is I'm the only candidate who's not taking corporate money. That’s a big deal everywhere, but especially in New York state because corporations can give directly to campaigns.

We have a situation in New York where there's a bunch of senators who are generously called “breakaway Democrats,” the Independent Democratic Caucus (IDC). They're people who run as Democrats and support Republicans in office. A court found recently that they took money illegally. I'm running for a law enforcement job, so this isn’t complicated. You say return the illegal campaign finance money. I spoke out against that, and of the three other candidates, only Leecia Eve did the same. The other two candidates still have not. It’s in these markers of independence from Andrew Cuomo and the IDC where you see the big differences.

Zephyr Teachout, I want to thank you so much for taking the time to speak with me today. I know you're super-busy with your campaign and I really appreciate it. 

Thanks. It was wonderful to talk to you.

Disclosure: Joshua Holland has made small donations to Teachout’s campaigns and canvassed for her when she ran for Congress in his home district in 2016.

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