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More Nonsense from AG Candidates

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Dick Hall-Sizemore
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Candidates for Republican AG Nomination Image credit: Richmond Times-Dispatch

By Dick Hall-Sizemore

A recent article in the Richmond Times-Dispatch has compelled me to once again mount my soapbox about one of my favorite peeves — the misleading claims, and understanding, of the role of the Virginia Attorney General.

I will say upfront that I realize that mine is a lost cause and, furthermore, what I am reacting to is political rhetoric. Nevertheless, like Steve Haner on another subject, I need to get it off my chest.

The article profiled the four candidates for the Republican nomination for Attorney General. In their remarks, there were several themes in common:

  • Opening schools and businesses
  • Professionalism of the Office of Attorney General
  • Use of force by police
  • Qualified immunity for law enforcement

Opening schools and businesses

—Some candidates were quite specific; others not so much. Leslie Haley promised to “look at issues that exist in executive orders and recent legislation that violates and impugns our constitutional rights.” She can look at executive orders all she wants. The Governor does not have to abide by her opinion. As for violating constitutional rights, Virginia courts have upheld Northam’s executive orders.

Jason Miyares was specific. If any school is still closed, he will bring suit. That is an empty promise. By the time the next Attorney General takes office, schools will be open. Besides, it is not clear what would be the basis of the suit. The Virginia Constitution requires all localities to provide public education, but it does not specify the format for providing that education. But this sounds good.

Jack White also talked about reopening schools and businesses, but that is not the role of the Attorney General.

Professionalism in the OAG—Surprisingly, this is actually a topic relevant to who gets elected Attorney General.However, the candidates beg the question of how the office is not professional now. This is Jack White’s top priority. He wants to move the office away from special interests. What special interests? He wants to move it away from political agendas. If this means that he will pledge not to run for Governor and use the office as a platform to do so, I will vote for him if he is the Republican nominee.

Haley wants to get the office back to one of service to citizens. Never mind that the primary role of the office is to provide legal advice to state agencies and to defend the Commonwealth in court, would she beef up the OAG’s Division of Consumer Counsel and represent consumers more forcefully, especially at the SCC in Dominion rate cases? If so, she should say so. That could get her some votes, but, it also may cost her some campaign contributions.

Use of force by police—They all want to hold police “accountable.” Beyond that, they are not too specific on how to do it. Haley would rely on local Commonwealth’s Attorneys and is worried about “overreach” by the Attorney General. She seems to be unaware of legislation just passed by the General Assembly authorizing the Attorney General to investigate a “pattern or practice” in a locality that deprives persons of their rights.

Qualified immunity—All strongly supported retaining qualified immunity for law enforcement. That is certainly a topic relevant to recent events, but it is a policy decision for the legislature to make, and, by extension, the Governor. The Attorney General would be limited to lobbying the General Assembly for or against any bill that would repeal or weaken sovereign immunity. I think the voice of law enforcement would carry greater weight in such a situation.

Other claims:

Chuck Smith trotted out the old bromide that the laws need to be enforced and he would be a “law-and-order” attorney general. Sorry, it is up to the police to enforce the laws and the Attorney General has only limited authority to prosecute criminal cases.

Miyares’s second priority would be to investigate the Parole Board. I have looked at the provisions in the Code of Virginia relating to the powers of the Attorney General and I did not find any provision that authorizes the Attorney General to investigate a state agency. He goes on to rail against the Parole Board releasing murderers and rapists. Whatever the merit of such complaints, the Parole Board has the discretion in law to do just that. Nor does the Attorney General have any role in deciding who is a member of the Parole Board — that power belongs to the Governor and the General Assembly.

Please, let’s amend the state constitution and make the Attorney General a gubernatorial appointee.

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19 responses to “More Nonsense from AG Candidates”

  1. James A. Bacon Avatar
    James A. Bacon

    I share your concerns. Candidates for AG have lots of things they’d like to address, but it’s not clear that the AG has the power or authority they’d need to do what they’d like.

    Candidates have to campaign on something. They have to identify issues that help them stand out from the pack. If they stuck to the enumerated duties of the AG, their agendas would be highly technical and legalistic — and a real turn-off to voters.

    It would be interesting to see if the Democratic AG candidates fall prey to the same temptations as the Republican candidates.

    Also, it might be useful to look at Mark Herring’s track record. Just peruse his press releases. He’s certainly managed to press his snoot into a wide range of issues, some of which seem far afield from the AG’s primary duties.

    1. CJBova Avatar
      CJBova

      Like this one: May 1 – Herring Celebrates Enactment of Collective Bargaining Legislation …celebrating legislation that he and his team worked with Delegate Elizabeth Guzman on that allows public employees to collectively bargain. The legislation was enacted into law today.

      PR List is here: https://www.oag.state.va.us/

  2. WayneS Avatar
    WayneS

    Thank you. Candidates making promises they are powerless to keep annoy me, too.

    Also, thank you for using “beg the question” correctly. Based on what I hear on TV and read in the papers, you may be one of the few people left on earth who know what it actually means. Given your demonstrated mastery of the English language, though, I am not at all surprised.

    Regarding “[p]lease, let’s amend the state constitution and make the Attorney General a gubernatorial appointee”, I ‘ve never really considered it. My knee-jerk response was “no way” but the more I consider it, the more I’m starting to think the idea might have merit.

  3. Stephen Haner Avatar
    Stephen Haner

    I don’t see Democrats Herring or his challenger Jay Jones talking about the actual work of the office much either. Actually kinda boring. Criminal appeals. Prisoner lawsuits. Disputes with contractors over faulty construction or change orders. Reviewing endless draft regulations. Giving lots of advice that agency leaders don’t want to hear and often ignore, then having to defend them when they screw up.

    But no, I think the AG being a separate constitutional officer directly elected and independent of the Governor has great value.

  4. DJRippert Avatar
    DJRippert

    Mark Herring seemed more than happy to to refuse to defend a Virginia State Constitution amendment banning gay marriage.

    This was before the US Supreme Court decision that banned bans on gay marriage.

    I voted against the Virginia amendment when it was on the ballot since, as a libertarian, it is nome of my business (or the state’s business) who is sleeping with whom.

    However, to say that the Attorney General can’t intervene against the interests of the people of Virginia is erroneous.

    https://wamu.org/story/14/01/23/herring_elaborates_on_decision_not_to_defend_virginia_gay_marriage_ban/

  5. William O'Keefe Avatar
    William O’Keefe

    AG translated to Aspiring Governor will change o something else if the Legislature more clearly defines the role of the office and specifies that budget funds can only be expended by legal work in support of an agency request. I suspect that most voters are confused as to the AG’s role because most get involved in whatever they think will advance their aspirations.

  6. James Wyatt Whitehead Avatar
    James Wyatt Whitehead

    The best way to spay and neuter the AG is to cut their budget down to an electric bill so Herring can keep the lights on.

  7. Publius Avatar
    Publius

    Fair criticisms. Now do the other side.
    Governor appointee? Devil I know versus the devil I don’t? I think I’ll stick with electing the schmos.
    And then we have the problem that they all want to be Gov so Aspiring Governor seems apt.
    I’d really love to see an AG who made the job boring and sought to enforce all the laws equally – you know the justice is blind thing…
    Herring liked to grandstand as the RESISTANCE! and fail to do his job, like defending what the voters had passed and will join in any of the leftwing amicus briefs, while turning a blind eye to sanctuary cities for illegals, but will he show such abeyance for sanctuary 2nd amendment localities? (That’s a rhetorical question.)
    Meanwhile, Trump’s own DOJ has a warrant on Giuliani while Giuliani is defending the President from impeachment and during the post-election chaos, but not one peep from one law professor at any Virginia school. So all that civil libertarian, free speech, right to counsel thing only applied until the Left got power? Rudy for a FARA violation, but not Hunter? No abuses to see here…move along…
    If we don’t get back to the rule of law, things will get ugly one day…

  8. LarrytheG Avatar
    LarrytheG

    The GOP AG wannabes are basically spouting the current GOP orthodoxy on current issues… perhaps not unlike the GOP Gov candidates.

    My impression of the AG office in most years , perhaps not this one, is that many voters don’t even know who they are until the elections are nigh upon us.!

    Hence the tables and tents and handouts on election day.

    Are AGs appointed in ANY state?

    1. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      The AG is appointed by the Governor in five states: Alaska, Hawaii, New Hampshire, New Jersey, and Wyoming

      In Maine, the AG is selected by the legislature

      In Tennessee, the AG is selected by the state supreme court

      https://ballotpedia.org/Attorney_General_office_comparison

      1. LarrytheG Avatar
        LarrytheG

        So it’s not unheard of. THANK YOU!

        Maybe you might consider a post on that idea!

        Aside from the AG issue, I wonder if Kirk Cox in Virginia is facing the same problem that Liz Chaney is facing in the national GOP.

      2. Nancy Naive Avatar
        Nancy Naive

        In that it is generally assumed, and largely supported by the evidence of rulings, that the judicial is largely uninfluenced by political ideology, it would seem our whiskey-swilling neighbors have the right idea.

        Were I able to wave the wand, I would have the AG appointed by the governor from a pool of the qualified determined by the Bar, with consent of a simple majority of the senate, and removable only by a majority of the supreme court.

        There. That seems complicated enough to provide independence.

        Oh, and just for the fun of it, “for a term of two full gubernatorial terms but not to exceed 10 years in the event of a midterm appointment,” just so the governor is forced to choose wisely since the next guy(s) might be stuck with ‘im too.

        1. LarrytheG Avatar
          LarrytheG

          If a nominated AG had to be confirmed by the Senate, sounds right.

          Are there ANY other members of the Va govt/administration that have to be approved by the Va Senate?

          We have a lieutenant governor which I’m not clear the duties other than succession.

          Florida is interesting:

          ”
          Florida is unique among U.S. states in having a strong cabinet-style government. Members of the Florida Cabinet are independently elected, and have equal footing with the governor on issues under the Cabinet’s jurisdiction. The Cabinet consists of the attorney general, the commissioner of agriculture and the chief financial officer. Along with the governor, each member carries one vote in the decision-making process. In the event of a tie, the side of the governor is the prevailing side.”

          In 1998 Florida changed from an elected Secretary of State to an appointed one.

          1. Nancy Naive Avatar
            Nancy Naive

            Wait? You would emulate Florida? If it weren’t for the weather, and an ideal orbit insertion location, thewhole place would be a swamp filled with aligators, snakes, rednecks, and a castle with a cartoon mouse.

            1998, and just in time for the 2000 election.

          2. LarrytheG Avatar
            LarrytheG

            https://www.earthtouchnews.com/media/1951391/green_iguanas_2018-17-10.jpg?width=710&height=474&mode=crop&upscale=false

          3. WayneS Avatar
            WayneS

            Is that the Florida Cabinet at work?

          4. LarrytheG Avatar
            LarrytheG

            perhaps –

            https://i.pinimg.com/736x/e5/75/17/e57517a821035c8347f9ff92c5ff3335.jpg

  9. Nancy Naive Avatar
    Nancy Naive

    The easiest and cheapest (to the State) way for the AG to hold local police forces accountable is NOT to get involved beyond a cursory examination and forward a request to the civil rights division of the DoJ since aside from criminal enterprises like the Hampton PD Bluewater cigarette sting, all excessive force patterns nowadays fall under the DoJs bailiwick.

  10. James C. Sherlock Avatar
    James C. Sherlock

    The role of the AG in Virginia has the same limits whether the incumbent is a Democrat or a Republican. My most specific complaint against all of them is that they fail to enforce the Virginia Antitrust Act against our regional hospital monopolies.

    But you are in general indicting these folks for committing politics while running for office.

    While it is not possible to be a more political AG than the incumbent, I would far rather have an elected AG than an appointed one. I like the fact that the Governor has to at least consider the AG’s opinion before acting, even if it comes from an AG of the same party.

    Nirvana for me and most people who like checks and balances would be a governor from one party and an AG from another. That would prove particularly useful at the state universities, where the governor would appoint the board and an assistant AG would be the lawyer.

    Our government is corrupt enough without another major appointee. That is the reason most states elect the AG.

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