Bacon's Rebellion

Democracy Thrives in Sunlight

The Proper Role of Virginia’s Attorney General

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by

James A. Bacon
in ,

by Jack White

By now, Virginia voters have heard from many candidates running for Attorney General making sweeping promises about policy changes they will implement as AG or talking about being the chief prosecutor for Virginia. With due respect to the other candidates in the race, I feel compelled to reiterate what is and what is not the role of the Virginia Attorney General.

The Office of the Attorney General is established in the Virginia Constitution with a clearly defined role. That is to defend the state in criminal appeals and suits against the state, provide legal advice and representations in court for the state and the Governor, provide legal counsel and official opinions to the General Assembly, and defend the constitutionality of state laws. This Attorney General is intended to be the Chief Advocate for the state of Virginia.

This is not a policy-making role. I have heard my fellow candidates talk about everything from their vision for health care to policing reform – all of which are functions of the legislature, not the Office of the Attorney General. One candidate also seems to be under the impression the Attorney General is a prosecutorial role, when in reality it is not.

I am a career attorney with decades of experience. I clerked for conservative Justice Samuel Alito on the United States Supreme Court dealing with some of the most critical issues coming before the court in decades including the landmark D.C. v. Heller. I worked in the U.S. Court of Federal Claims, the U.S. Court of Appeals, Virginia state courts, and in D.C.

I’ve advocated for re-opening schools not as a policy making position, but because I believe there is a Constitutional case for re-opening schools. The Supreme Court of Virginia declared that education is a fundamental right under the Virginia Constitution, and the Virginia Constitution provides for “an education program of high quality.” The distance learning protocols in place during the COVID-19 pandemic are insufficient replacement for quality in-classroom learning, thus not meeting the Constitutional standard.

I’m also in the fight for reopening schools in my role as a practicing Attorney. I’m currently representing Virginia families who are suing to re-open schools to in person education in Northern Virginia. Previously, I successfully represented churchgoers in court who were prevented from going to church during COVID-19.

Don’t fall for candidates telling you they are going to change public policy. The Attorney General, as defined by the Virginia Constitution, should be seen as a  Chief Advocate for the state of Virginia. I have the legal know-how, decades of experience, and qualifications to be the Chief Advocate for all Virginians.

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13 responses to “The Proper Role of Virginia’s Attorney General”

  1. tmtfairfax Avatar
    tmtfairfax

    Attorneys General sticking to their knitting has been a long-term problem in most states and across party lines. Too many view the position as if it were “junior governor.” They need to represent the state in legal actions and provide legal advice and opinions as required by law. There is a room for a fairly broad scope of investigatory work, especially in antitrust and consumer protection. But I question why state AGs are leading the charge on robocalls instead of the state PUCs, for example.

    1. Stephen Haner Avatar
      Stephen Haner

      “Aspiring” Governor. It is for example the National Association of Aspiring Governors. I organized a meeting in Williamsburg for the Southern Association of Aspiring Governors. And I recall all the “helpful” input we got in the office from previous attorneys general, and I called them Former AG’s, or…… Well, lets skip the acronym. It was 20 years ago. Humor was easier….

  2. James Wyatt Whitehead Avatar
    James Wyatt Whitehead

    I have had fun fooling around with the ranked choice ballot. Fascinating combinations that I have not quite worked out yet. I think it will be one day late next week when the counting is completed.

    1. LarrytheG Avatar
      LarrytheG

      Is this the first time that ranked choice has been used in Virginia? The tabulation is being done by RPV not Virginia Election officials, right?

      1. James Wyatt Whitehead Avatar
        James Wyatt Whitehead

        Not sure about the first time or not. RPV has hired a professional vote counting company to add up the results. Not sure who they hired.

  3. DJRippert Avatar
    DJRippert

    The more I read from Mr. White the more I like him as a candidate. Virginia’s state government is a mess. Our Constitution has an extremely poor set of checks and balances. That issue only gets worse as one branch oversteps or under steps their Constitutional authority. For example:

    1. Commonwealth Attorneys who selectively enforce laws. The most glaring example being marijuana possession. In some areas of the state penalties were harsh. In other areas the CA promised to stop prosecutions. Due process? I think not.

    2. A Supreme Court without the gumption to interpret the law with regard to gerrymandering. In a stunning opinion the Virginia Supreme Court claimed it could not define “compact and contiguous” as referenced in the Virginia Constitution. That’s what supreme courts do … interpret words.

    3. Mark Herring’s refusal to defend the Virginia constitutional amendment that defined marriage as a union between one man and one woman. Mr. Herring may not have liked that law. Neither did I. However, it was the law.

    Now comes Mr. White who promises, if elected, to execute the duties of the office of Attorney General in accordance with the Virginia Constitution.

    A breath of fresh air in my book.

    1. Stephen Haner Avatar
      Stephen Haner

      There is one responsibility of the office seldom discussed, and that is the statutory role of consumer counsel. The AG’s office is always deep in the major rate cases at the SCC, and the Current Incumbent is a full on believer in the Climate Catastrophe Narrative. IMHO that means the consumer is likely being put second as higher costs and bad generation decisions are accepted in order to “save us from extinction” or some such nonsense.

      I have never heard any of the candidates discuss this, even though it is one place where the position of the AG could save or cost everybody significant money.

  4. James Wyatt Whitehead Avatar
    James Wyatt Whitehead

    James Sanders Wheat was the first elected Attorney General Republican in Virginia. Well sort of. Elected at the Wheeling Restored Government of Virginia in 1862. From then until 1874 Virginia was the First Military District of the Reconstruction Era. Generals such as E.R.S. Canby appointed the next 5 attorney generals. The first true Republican elected Attorney General was John Marshall Coleman in 1977. He was 0-4 in arguing cases before the US Supreme Court. I have wondered if Coleman was a relative of the great chief justice.

    1. LarrytheG Avatar
      LarrytheG

      James, you are the WIKI for Va History ! I marvel at your knowledge of history AND I THANK YOU for sharing it!

    2. DJRippert Avatar
      DJRippert

      During reconstruction the First Military District (governing Virginia) was governed by John M. Schofield as I recall. Pursuant to federal legislation Schofield called for a new state constitution. The Democrat majority in Virginia (read: plantation elite) at the time largely refused to participate in opposition to freedmen’s suffrage. As a result, Republicans led by John Curtiss Underwood dominated the constitutional convention. The resulting constitution ensured that Blacks could vote and was alternately called The Underwood Constitution or The Negro Constitution. The 1870 constitution was remarkably fair and forward looking for its day.

      Once the federal government gave control of Virginia back to the plantation elite, another constitutional convention was called. In 1902 the plantation elite completed a truly horrible document institutionalizing Jim Crow in Virginia. Virginia’s electorate was reduced nearly in half due to the disenfranchisements of the 1902 constitution. However, since the 1870 constitution was still in force the 1902 constitution could not be ratified by a vote of the people since it would likely fail that vote while Blacks were still enfranchised. No problem. The Imperial Clown Show in Richmond passed the constitution without popular vote. Thus began an almost 70 year reign of Democratic control and Jim Crow in Virginia.

      I always find it funny when some wag from plantation Virginia decries the “carpetbaggers”. Those carpetbaggers put Virginia on a path toward a modern, fair society with a good start at equal opportunity. It was Virginia’s plantation elite that changed course and turned Virginia into the backward, backwater, racist state that it was from the 1902 constitution until the 1971 constitution.

      Too bad the carpetbaggers left. Had they stayed they might have protected future generations of Virginians from the horrors of Jim Crow as designed and implemented by the state’s plantation elite.

      1. LarrytheG Avatar
        LarrytheG

        Even in the North , black people did not have anywhere near equal rights and opportunity but far less were lynched and jailed for nothing.

      2. James Wyatt Whitehead Avatar
        James Wyatt Whitehead

        Don’t forget Francis Pierpont. He was the first governor of the Restored Virginia. Pierpont passed the torch to the hero of the Battle of Franklin, John Schofield.

        Most white southerners in Virginia were denied the right to vote because of a reluctance to take the Oath of Allegiance. The white voter rolls for Democrats did not rise until Jimmy Kemper, of Pickett’s Charge fame, was elected governor in 1874.

        You can thank Carter Glass of Lynchburg for the 1902 Va Constitution. “Discrimination! Why that is exactly what we propose. To remove every negro voter who can be gotten rid of, legally, without materially impairing the numerical strength of the white electorate.” Glass was essentially the midwife for the Byrd Machine.

        You can thank Rutherford B. Hayes for the laissez faire political philosophy. An exchange of home rule for the south in return for switched electoral southern votes. From Hayes onward to WW2 the federal government turned it’s back on southern problems.

        The history of the Virginia political graveyard is endlessly interesting to me.

  5. Stephen Haner Avatar
    Stephen Haner

    He is of course correct, but as long as I’ve been paying attention, candidates for the office tend to inflate the power and influence when seeking votes. Voters aren’t really interested in how brilliantly you settle a vendor contract dispute or bat away the habeas petitions from the prisoners! And you tend not to focus on how you defeated some poor injured person’s claim in court. Four years of reading med mal descriptions in the weekly summary report kept me away from certain hospitals.

    Got a favorite, have you, Jim? Two days in a row…An in-kind contribution!

    Lots of interesting possible outcomes once the smoke clears. It is quite possible you’ll see a GOP ticket where none of the three has held any public office before. Experience has become a very dirty word in some circles, and nobody’s voting record can measure up to the purists demands. Not sure which I am more sick of seeing: the word equity or the label RINO.

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