- The Washington Times
Tuesday, July 11, 2017

They used to call themselves AGs United for Clean Power, but the Democratic attorneys general who once pursued Exxon might be more accurately described today as AGs United Against Trump.

Anti-Trump prosecutors have banded together this year to rain litigation on the White House, raising their own political profiles as well as the temperatures of Republicans who have decried the Democratic use of the court system to wage policy disputes as an abuse of prosecutorial discretion.


Maryland state Delegate Haven N. Shoemaker Jr., Carroll County Republican, became so frustrated at what he described as Attorney General Brian Frosh’s “grandstanding” that he and 35 other Republican legislators last week sent the Democrat a message: Enough with the lawsuits already.

“With regard to what we see Brian Frosh doing, I mean, he’s suing President Trump for everything from soup to nuts,” said Mr. Shoemaker, himself a lawyer. “Every week, it’s something with him.”

In their Monday letter, the legislative Republicans urged Mr. Frosh to rethink the more-is-better approach to litigation. Last week, he joined 19 Democratic attorneys general in suing the Education Department over delaying Obama-era regulations on for-profit colleges.

That’s not all. So far this year, he has participated in multistate Democratic coalitions challenging the Trump administration on the methane rule, pesticide labeling, greenhouse gases, efficiency standards, regulatory rollbacks, vehicle emissions standards and the “travel ban.”

A month ago, Mr. Frosh and District of Columbia Attorney General Karl A. Racine filed a lawsuit alleging that Mr. Trump had violated the Constitution’s emoluments clauses by benefiting from foreign governments through his hotel and golf businesses, which Mr. Shoemaker described as “borderline frivolous.”

Democratic prosecutors have defended their aggressive legal activism as necessary to guard against what they describe as the Trump administration’s irresponsible deregulation efforts and unpredictable administrative impulses.

“Again and again, the Trump administration puts the interests of polluters before the health and safety of New Yorkers. But we’ve made clear: We won’t hesitate to fight back,” New York Attorney General Eric Schneiderman said after 15 prosecutors filed a June 29 notice of intent to sue over the methane rule.

Certainly Democrats aren’t the first to take to the courts to oppose an unfriendly White House. During the Obama administration, Republican attorneys general in more than 20 states teamed up to fight the Affordable Care Act and the Clean Power Plan in the courts.

The difference lies in the sheer volume of the Democratic challenges as well as the rationale behind the litigation.

While Republicans had fought to stop the federal government from encroaching on state authority, the Democrats want to safeguard federal regulations and programs, not thwart them, said Andrew M. Grossman, a partner with BakerHostetler in Washington, who was involved in the Clean Power Plan litigation.

“What’s so strange is that [Democrats] are doing exactly the opposite,” said Mr. Grossman. “They want the federal government to regulate more, and apparently they don’t want the states to have their say. It’s exactly backwards.”

Connecticut lawyer Margaret A. Little said the result is that Democratic prosecutors are abusing their enforcement power to advance a policy agenda.

“There you have a political debate going on in the guise of a lawsuit,” said Ms. Little, who authored a February report on the partnership between state prosecutors and private counsel for the Competitive Enterprise Institute.

Even before Mr. Trump took office, Democratic prosecutors had dipped into the policy front. Seventeen attorneys general, led by Mr. Schneiderman, unveiled in March 2016 a coalition, AGs United for Clean Power, to pursue accusations that Exxon had ignored its own climate research.

The effort didn’t pan out as planned: Most of the Democratic prosecutors involved with the coalition never launched probes against Exxon, at least not publicly. One of those who did, the Virgin Islands attorney general, withdrew his subpoenas after being challenged by Exxon and the Competitive Enterprise Institute.

Republicans have ascribed political motives to the litigious Democrats.

Both the Exxon campaign and anti-Trump litigation have boosted Mr. Schneiderman’s name recognition at a time when the Democrat is believed to be eyeing a gubernatorial bid.

“Watching him and other Democrats trying to trip over themselves to be the Trump antagonists is laughable,” New York Republican Party spokeswoman Jessica Proud told the New York Daily News. “They’re all lining up to raise their national profiles.”

While the Democratic attorneys general have been accused of overstepping their bounds, Mr. Frosh can argue that his authority to pursue the Trump administration was handed to him by the state legislature — this year.

In February, the Democrat-controlled legislature passed, over the objections of Republicans, the Maryland Defense Act, also known as Senate Joint Resolution 5, giving the attorney general $1 million per year to hire lawyers to help him protect the state against the federal government.

Even so, the Maryland Republicans argue that Mr. Frosh has gone too far. In their Monday letter, they asked him to provide an accounting of his recent anti-Trump legal splurge to ensure that “precious tax dollars” are not “squandered on lawsuits whose actual goals are meant to grandstand and score political points via frivolous charges and contentions meant only to harass, embarrass, and ‘resist’ the administration of President Trump solely because he is a member of a party different than your own.”

Frosh spokeswoman Christine Tobar accused the attorney general’s Republican critics of engaging in grandstanding themselves, saying the media received their letter before the attorney general did.

As for Mr. Frosh’s actions, she said they have been wholly justified.

“We have sued the Trump administration to stop them from ripping apart the health insurance that protects more than 400,000 Marylanders,” she said in an email.

“We have also acted to stop the Trump administration from: endangering infants, children and pregnant women by allowing toxic chemicals to be used in their neighborhoods; allowing our air to be polluted with vehicle emissions and methane; banning Muslims from entering the United States; allowing unscrupulous for-profit colleges to cheat students of their hard earned tuition funds,” Ms. Tobar said.

Republicans like Mr. Shoemaker want the attorney general to spend more time working on state prosecutorial concerns and less time throwing paper at the White House.

“I think that if he would concentrate on prosecuting the cases that are assigned to the attorney general that he’s supposed to prosecute criminally, and advise administrative agencies, and just generally do his job as attorneys general in Maryland have traditionally done, the taxpayer in Maryland would be a heck of a lot better off,” said Mr. Shoemaker. “But that’s not what we’re seeing.”


Copyright © 2017 The Washington Times, LLC.