Tish James signals ideological split from Hochul with unusual recusal

NEW YORK — New York’s Attorney General Tish James made a startling move last week: She fired her only client.

James took the rare step of declining to represent the state and its governor, fellow Democrat Kathy Hochul, by recusing herself from a case brought to force New York City to house those in need, including tens of thousands of migrants.

“We had a philosophical difference” is all James would say when asked about the split Monday.

Hochul believes the legal requirement to provide shelter to those in need only applies to New York City and not statewide as she fields criticism from suburban Democrats who don’t want migrants resettled in their towns. James disagrees because she views housing as a “human right” that applies across the state.

James’ decision to bow out of representing Hochul is also a politically-savvy one for an attorney general who wants to position herself to the left of the more moderate Democratic governor.

“It’s deplorable the governor is not doing more and deplorable the White House is not doing more,” said Mike McKee, head of a progressive political action committee called Tenants PAC. “I think it’s great Tish is taking a stand,” said McKee, a longtime James ally.

The attorney general and the governor, two of the state’s most powerful Democrats, have insisted publicly that they are not feuding. But the fault line is now clear over the politically fraught migrant issue that’s also divided President Joe Biden and New York City Mayor Eric Adams. The split could complicate New York’s ability to get more federal help for migrants and fuel a major line of attack for national Republicans.

The case over the so-called right to shelter law is playing out as the city struggles to house more than 58,000 asylum-seekers in its care. Migrant men sleeping on a midtown Manhattan sidewalk earlier this month led to an emergency hearing on whether Adams was violating the decades-old right to shelter provision.

Hochul has also butted heads with Adams over migrants. In legal filings late Tuesday, Hochul alleged a lack of cooperation from the city around asylum-seekers.

Adams tried not to fan any intraparty flames.

“People want to see the governor and I fight. That’s not going to happen,” Adams, a Democrat, told reporters Wednesday. “I like her, she likes me, and the things that we can learn from each other, we are going to do together.”

James has also been careful to cooperate with Hochul in public, and Hochul hasn’t knocked James, either.

Hochul in a NY1 interview on Wednesday insisted James’ decision was based on a different interpretation of the law without going into detail.

“I need an attorney who actually supports our view,” the governor said.

James’ resume helps explain the current split. She got her start as a public defender with the Legal Aid Society, which is the plaintiff in the case that caused the rift with the governor.

Distancing herself from the argument that the right to shelter should be applied narrowly to New York City protects James’ progressive bona fides and shores up her political future.

James built her national profile by suing former President Donald Trump over his company's business dealings. (He’s said the ongoing lawsuit is politically-motivated.) She also delivered the final blow to former Gov. Andrew Cuomo, releasing a report alleging sexual harassment and other inappropriate behavior that led to his resignation.

Her representation of Hochul in the case “alienates the left and is bad for national progressive cred,” a Democratic political operative who worked for a former state attorney general said in an interview.

James ran for governor against Hochul in late 2021, but pulled out of the Democratic primary after finding limited support. She later backed Hochul and instead ran for reelection as attorney general.

“The right to shelter has been the law of the City of New York for 40 years and challenging that is wrong," said former New York City Council president Christine Quinn, who leads Win, a homelessness group.

“Challenging that strikes at the core of who we are as New Yorkers, people who want to help each other," Quinn added, saying, "I would understand why (James) would not want to defend an assault on that.”

There have been moments in recent state history when attorneys general have refused to defend the state they are elected to represent, but recusals are rare.

“The way you’re really supposed to think about the AG’s office is it’s the state’s law firm,” said Steve Cohen, a former top adviser to Cuomo when he was attorney general and governor. “Someone sues the state and brings an affirmative case in a civil matter, you don’t go to a law firm, you go to the AG.”

In 2009, Cuomo withdrew the attorney general’s office from a case against Gov. David Paterson in a disagreement about the governor’s legal authority to appoint a lieutenant governor. Paterson, who, like Cuomo is a Democrat, ultimately won the case after hiring an outside law firm.

In 2006, as he ran for governor, then-Attorney General Eliot Spitzer had to defend his office’s prior representation of New York where the state opposed the legalization of same-sex marriage. Spitzer, a Democrat, argued the case even though he personally believed in same-sex marriage.

“My client over the last seven and a half years has been the state of New York,” he said. “I am constitutionally obligated."

Several former elected officials said that James' decision is not unprecedented, but still unusual.

“Constitutionally, the attorney general is obligated to defend the state in this instance,” former Attorney General Dennis Vacco, a Republican, said. “The attorney general can talk about policy. But the attorney general has no independent policymaking authority.”

A disagreement on whether the state must, like New York City, provide shelter beds for migrants highlights deep-rooted differences between James and Hochul. James is from Brooklyn; Hochul from Buffalo in Western New York. While left-leaning groups have boosted James’ career, Hochul has leaned on more centrist supporters.

“Now that she has a full term, I think people are seeing who she is as governor,” progressive political consultant Bill Neidhardt said of Hochul. “She’s to the right of most of the Democratic primary electorate. I do think that dynamic sets up someone like Tish James to be a credible challenger.”

Hochul has detailed Albany’s support of the city during the crisis, namely by allocating $1 billion in funding and providing state-run facilities for emergency housing. She has also pressed Biden for more federal aid, though in a less confrontational manner than Adams.

Hochul said last week she’s convinced “the state is not a party to” the 1981 consent decree that established the right-to-shelter within the city. That ruling came out of a 1979 class-action lawsuit filed on behalf of homeless men against then-Gov. Hugh Carey and Mayor Ed Koch.

“I will certainly tell you that right does not extend to the entire state of New York,” Hochul said Wednesday.

James has been guarded about her decision to leave the case, but those who have worked with her stressed it may have come down to her fundamental beliefs about housing and homelessness.

The legal fight came after Adams sought to suspend the right to shelter requirement in May as city services have buckled under the weight of the influx of migrants. A judge earlier this month said the state should take on a larger role in ensuring the city can meet its shelter obligations. Hochul insisted the law only applied to the city. Then James withdrew from the case.

So taxpayers will cover the cost of a private law firm, Selendy Gay Elsberg, to act as Hochul’s counsel.

New York City Public Advocate Jumaane Williams, a Democrat who ran to Hochul’s left in the gubernatorial primary, called James’ recusal “the right thing to do.”

Space is running out in the city, he said in an interview, adding, “I don’t think this is a case that the state should be fighting to begin with. It seems pretty clear. I side with the AG on this one.”

Norman Siegel, a civil rights attorney and Adams ally, pointed to a section of the 1979 court decision that reads: “There is no reason why these homeless and indigent men cannot be lodged and fed at institutions wherever available in the State.”

Jeff Coltin and Julia Marsh contributed to this report.