A perversion of rule of law
In at least a handful of blue states, a disturbing trend is emerging: Left-wing state attorneys general are acting less like legal representatives of their constituents and more like partisan political activists. Why is this disturbing? Because, unlike your run-of-the-mill community organizer, activist attorneys general have at their disposal broad legal powers (not to mention millions upon millions of tax dollars) that they can use to investigate, subpoena, sue, or prosecute the targets of their political party — and they’re doing just that.
The Department of Justice has been doing an end run around Congress to appropriate funds to the Obama administration’s favored allies.
In New York, Attorney General Eric Schneiderman announced this spring that he would be leading a battle on climate change by investigating fossil-fuel companies, such as ExxonMobil, for “[misleading] investors and the public on the impact of climate change on their businesses.” A thin legal theory, to be sure: Unlike cases in which a corporation has unique information about its own products and services, on the issue of climate change there is a vast public trove of articles and analysis for investors to examine. But Schneiderman was able to invoke broad subpoenas and threats of prosecution under the auspices of New York’s infamous Martin Act, an obscure 1921 statute revived by Schneiderman’s predecessor Eliot Spitzer as he assumed the mantle of the “Sheriff of Wall Street” before the financial crisis. And Schneiderman isn’t alone in this particular effort: Other state AGs lined up beside him. Claude Walker, the attorney general for the U.S. Virgin Islands, issued to the Competitive Enterprise Institute a sweeping subpoena that demanded it turn over all communications with nearly every free-market think tank (including the one that employs the authors of this piece) on issues relating to climate change. (This subpoena has since been withdrawn.)
Among Schneiderman’s fellow AGs who demanded documents and testimony from ExxonMobil was Massachusetts attorney general Maura Healey. Healey has recently shifted her attention to another ideological enemy: gun manufacturers, namely Glock Inc. and Remington Outdoor Co. Earlier this year, Healey unilaterally redefined a term in the state’s assault-weapons ban in order to broaden the scope of weapons covered without going through the legislative process. Healey also launched an investigation into Glock and Remington under a product-liability theory – a move that seems to contradict the Democratic presidential nominee’s statements about gun manufacturers’ being “totally free of liability.” Healey’s investigation is now the subject of ongoing litigation initiated by Glock, which has stated its belief that the “true purpose” of her investigation is “to harass an industry that the attorney general finds distasteful and to make political headlines by pursing members of the firearm industry.” The gun company might have a point, given that Glock pistols apparently cannot be sold to consumers in the state of Massachusetts because they do not comply with the state’s handgun safety regulations. This contributes to the impression that the investigation is merely a pretext for punishing a politically disfavored group.
Out West, California attorney general Kamala Harris — a candidate for the U.S. Senate seat currently held by Barbara Boxer — has used her broad investigatory powers to go after another member of the Democratic party’s “enemies list.” Her target: K12, a company that operates virtual charter schools. K12 earned the enmity of the California Teachers Association when the company pushed back against its efforts to unionize their schools. (The California Teachers Association has donated $32,695 to Harris’s Senate campaign.) The investigation recently led K12 reaching a $168 million settlement over allegations of fraud and misleading marketing. The Wall Street Journal referred to this as the product of “thuggish government.”
Irrespective of whether “thuggish” is the right word to describe these invocations of legal authority, this trend is certainly cause for concern, especially since state AGs aren’t the only ones playing politics with the law. Indeed, the Justice Department has been known, under Attorneys General Eric Holder and Loretta Lynch, to use its practically unchecked authority to ensnare corporate targets with deferred and non-prosecution agreements, as well as civil settlements, which require companies to make hefty donations to such liberal nonprofits as La Raza and the National Urban League. Through this tactic, the Department of Justice has been doing an end run around Congress to appropriate funds to the Obama administration’s favored allies.
When politicians selectively use their legal authority to regulate and intimidate political opponents through sweeping investigations and prosecutions, they don’t just undermine the political process, they undermine the very thing that distinguishes our nation from the dysfunctional states of the world: respect for the rule of law.
This piece originally appeared on National Review Online
James R. Copland is a senior fellow and director of legal policy at the Manhattan Institute. Rafael Mangual is the project manager for legal policy.
Photo by Kevork Djansezian / Getty