state ags misuse position – USA Gov Policy

As 2018 draws to its inevitable end, a new crop of state attorneys general will take office. Many represent a wholly alien view of what the American legal system is all about.

During the Obama Administration, federal agencies such as the Department of Justice (Remember Loretta Lynch’s comment that she was seriously considering “criminally prosecuting” anyone who disagreed with the then-president’s views on climate change?) and the Internal Revenue Service were used to attack political opponents of the White House (IRS official Lois Lerner was found to have used the tax agency to assault the Tea Party, for example)

With the regime change following the 2016 elections, the center of gravity for using public office to benefit party or ideological interests shifted to some state attorneys general. Martin Morse Wooster, writing for the Capital Research Center notes that “Aiming to reshape society, state attorneys general wield ever-expanding powers over private corporations, foundations and nonprofits. Their activities–too often motivated by ideology and politics–frequently undermine the very institutions they are supposed to protect. The author was discussing partisan assaults on private organizations, but the concept now applies to the highly partisan and overt attempt to de facto overturn the impact of the 2016 election.”

Governing magazine notes that “State attorneys general may be the freest actors in the American political system. Their broad discretion gives them enormous power… it’s clear that attorneys general today have close and sometimes questionably comfy relations with entities looking to profit from their work.”

Alan Greenblatt writing in Governing magazine noted that “Paul Nolette, a political scientist at Marquette University believes left-wing AGs ‘will be prepared to use a kitchen sink strategy …’ A single activist attorney general …can command a small army of lawyers.…”

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Democrats won the majority of state attorneys general races in the 2018 campaign, taking 27 of the key positions. Josh Siegel, writing in The Washington Examiner quotes Zack Roday, spokesman for the Republican Attorney Generals Association: “Democratic AGs are tripping over themselves in endless litigation and renting out their badges to liberal billionaires…The State Energy & Environment Impact Center, a coalition launched in August 2017 to assist state attorneys general contesting Trump’s deregulatory agenda, says attorneys general have filed 38 lawsuits against the administration on energy and environmental issues as of Oct. 5. Most of these have been over the Trump administration’s early efforts to delay or suspend rules that had been completed at the end of the Obama administration.”

NBC reports that New York Attorney Gen.-elect Letitia James plans to use her office to engage in “extensive probes of President Donald Trump and his family members… ‘We will use every area of the law to investigate President Trump and his business transactions and that of his family as well,’ James, a Democrat, told NBC News…” James’ determination is so fierce that she has threatened to overturn constitutional safeguards in her Jihad against the White House. “James campaigned on passing a bill to change New York’s double jeopardy laws with an eye on possible pardons coming out of the White House. James told NBC News she wants to be able to pursue state charges against anyone the president were to pardon over federal charges or convictions and whose alleged crimes took place in the state. Under current New York law, she might not be able to do that.”

The issue of utilizing the legal system to achieve partisan political goals has been taken far too lightly. No one in the Obama Administration has been punished for their actions. None of the Ninth Circuit Court of Appeals judges who have repeatedly issued decisions (frequently overturned by the U.S. Supreme Court) clearly passed on their political leanings and utterly unsupported by legal precedent, the U.S. Constitution, or statutory law has faced disciplinary action. This has led the incoming class of state attorneys general to believe that they can abuse their office without fear of punishment.

Illustration: New York State incoming Attorney General Leticia James (official photo)

Quick Analysis

Judge Merchan continues to deny justice to Donald Trump

In August of 2024, we discussed the US Supreme Court’s decision in Trump v. United States. We described the three tiered system enunciated by Chief Justice Roberts to determine whether or not the actions taken by the President of the United States are entitled to immunity from criminal prosecution or not. The first tier are acts within the President’s constitutionally mandated authority which are subject to “absolute immunity.” The next are acts that may have “presumptive immunity,” and are subject to examination with evidence that rebuts the presumption of immunity. The third are acts which are unofficial, and which enjoy no immunity. In September, we also discussed the effect this decision should have on the New York County criminal case currently pending against President-elect Trump before Judge Juan Merchan. We cited to a CNN report, which described the evidence used against Donald Trump at the trial of that matter: “Trump’s lawyers pointed to testimony at trial – including from White House officials Hope Hicks and Madeleine Westerhout – they argued should not have come before the jury…'[a]ll of Hicks’s testimony concerning events in 2018, when she was serving as the White House Communications Director, concerned official acts based on [Presidential] authority for which President Trump is entitled to absolute immunity,’ Trump’s attorneys argued. ‘[the Supreme Court’s ruling] specifically forbids prosecutors from offering ‘testimony’ from a President’s ‘advisers’ for the purpose of ‘probing the official act.’” Sure enough, as Chief Justice Roberts stated in the Presidential Immunity decision, “[a]llowing prosecutors to ask or suggest that the jury probe official acts for which the President is immune would thus raise a unique risk that the jurors’ deliberations will be prejudiced by their views of the President’s policies and performance while in office. The prosaic tools on which the Government would have courts rely are an inadequate safeguard against the peculiar constitutional concerns implicated in the prosecution of a former President.” At the time, we stated that “Judge Merchan allowed testimony regarding Donald Trump’s official acts as President, acts which enjoy absolute immunity and which cannot be used against him, or even be entered into evidence in a criminal trial, a situation which could have been avoided had Judge Merchan delayed the trial until he’d received the guidance of the US Supreme Court.” Nonetheless, we predicted that Judge Merchan “will find a way to justify his actions once again, and let stand the unlawful conviction of former President Donald Trump.” You know how much we hate to say we were right…but…we were right. “This Court…finds that the evidence related to the [President-elect’s] claims relate entirely to unofficial conduct and thus, receive no immunity protections,” Judge Merchan wrote in his December 16, 2024 decision. “Further, even if this Court were to deem all of the contested evidence…as official conduct falling within the outer perimeter of Defendant’s Presidential authority, it would still find that the People’s use of these acts as evidence of the decidedly personal acts of falsifying business records poses no danger of intrusion on the authority and function of the Executive Branch, a conclusion amply supported by non-motive-related evidence.” In so ruling, the Court denied Donald Trump’s motion to dismiss his New York County conviction. Let us examine these findings, in light of the evidence admitted at the President-elect’s trial, and then compare that evidence to the acts granted absolute immunity by the US Supreme Court. In his decision, Judge Merchan discusses the testimony of Hope Hicks, who served as the Communications Director for the Trump White House. “Defendant argues that in her roles at the White House, any communications between Ms. Hicks and Defendant must receive absolute immunity…as Defendant’s ability to speak freely to Ms. Hicks was a core function of the Executive. According to Defendant, because Ms. Hicks wielded executive power on his behalf, authority that exists pursuant to Article II of the Constitution, any communications [President Trump] had with [Hicks] are subject to absolute immunity,” the Court wrote. Judge Merchan also noted that “[t]he People argue that the communications Defendant had with Ms. Hicks…constitute unofficial acts not entitled to any level of immunity.” In his inevitable agreement with the arguments presented by Manhattan DA Alvin Bragg’s office, Judge Merchan wrote “Defendant’s argument that any communication he had with Ms. Hicks is subject to absolute immunity by virtue of the position she held in the White House is mistaken…the President himself may speak in his unofficial capacity as a candidate or party leader, and certainly he can do so in his private capacity as well. Any argument that private conduct transforms into official conduct by communicating about the same to an individual with a particular title is without merit.” Thus, it is Judge Merchan’s position that the conversations Donald Trump had with his Communications Director are not entitled to immunity, even though those discussions were held at the White House, while Donald Trump was serving as President of the United States, merely because those discussions were not related to official Executive Branch activities. Sounds possibly reasonable – until you examine the Presidential Immunity decision more closely. In September, we wrote that “the statement made by Chief Justice Roberts in his majority opinion in the Presidential Immunity case [is significant]; ‘Presidents cannot be indicted based on conduct for which they are immune from prosecution…[t]estimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial.’” This statement by Chief Justice Roberts points to a blanket immunity for ANY discussions had between the President and his advisors, regardless of the nature of those communications. Further, we noted that the Supreme Court issued the following warning: “[t]he government…contends that a jury could ‘consider’ evidence concerning the President’s official acts ‘for limited and specified purposes,’ and that such evidence would ‘be admissible.’” In rejecting that argument, Chief Justice Roberts states “[t]hat proposal threatens to eviscerate the immunity we have recognized. It would permit a prosecutor to do indirectly what he cannot do directly – invite the jury to examine acts for which a President is immune from prosecution […]