A precondition of the rule of law is that those who are ruled (the citizenry) believe they are not alone in adhering to the rule of law, that it is a two-way street. Nor can the fair administration of the rule of law be a partisan endeavor. Governing is not a simple business, requiring more than Adam Smith’s invisible hand to ensure the enterprise is successful.
The rule of law is, however, undergoing a stress test in the political arena. The test is being complicated by another traditional value, that of free speech, free political speech, and incumbent partisan authority. The national face of the rule of law resides with the United States Attorney General, authorized under the Judiciary Act of 1789, generally “to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned.” Every state of the union (and six non-state entities) has an analogous constitutional office created for similar purposes. In lay terms, a state attorney general is the chief lawyer for the jurisdiction, not directly for its residents.
The National Association of Attorneys General (NAAG) was founded in 1907 as a nonpartisan platform to provide opportunities for collaboration on issues of common concern. For over 90 years, NAAG functioned in this capacity until 1999, when the Republican Attorneys General Association (RAGA) was formed, with the Democratic Attorneys General Association (DAGA) following in 2002. Both partisan groups have become influential in state and national politics as policy advocates and fundraisers. These engagements, however, as is often the case, tend to drag the best of intentions into dangerous territory.
In 2014, RAGA created a policy arm called the Rule of Law Defense Fund (RLDF) to “study important legal issues.” Six years later, RLDF, according to public news sources, sponsored robocalls on January 5, 2021, with the message, “At 1:00 p.m., we will march to the Capitol building and call on congress to stop the steal. We are hoping patriots like you will join us to fight to protect the integrity of our elections.” (emphasis added). The organizer of the January 6 event was March to Save America which, initially, noted RAGA as a “coalition partner,” later changed to RLDF. Federal tax filings indicate RAGA pays RLDF’s payroll costs, partially reimbursed by RLDF but only further contributing to a muddy picture.
Steven Marshall is the current AG of Alabama and served as chair of RLDF in 2020. In an interview with an Alabama media outlet, Marshall denied any knowledge of the robocalls, asserting that, if they were conducted, they were done without his approval. Marshall further commented that an investigation would be undertaken. Several other sources offered that the robocalls were made at the direction of a “rogue staffer.”
On March 24, 2022, Mr. Marshall, at the invitation of the Republican caucus on the Senate Judiciary Committee, testified in the nomination hearing of Judge Ketanji Brown Jackson. His written testimonial statement can be read at:
The Alabama Republican concluded that he had heard nothing “during this week of hearings to alleviate my fear that Judge Jackson indeed believes that a ‘fundamental redesign’ is needed in our criminal justice system and that she would be inclined to use her position on the Court to do so.” Essentially, Marshall’s testimony critiqued congressional legislative policies that, in his opinion, were soft on crime and punishment, including Judge Jackson’s alleged inclination to compassionate release.
The Alabama AG declined to state whether he believed President Biden was duly elected, instead stating, “he is the President.” This bit of political kabuki traces directly to RAGA. Further, more than one year following the January 6th events, Marshall insisted he had no knowledge of the origin of the robocalls attributed to RLDF, despite a pledge to investigate the matter.
In other testimony in response to questioning by a Democrat Senator, the Alabama AG declined to state whether he believed President Biden was duly elected, instead stating, “he is the President.” This bit of political kabuki traces directly to RAGA. Further, more than one year following the January 6th events, Marshall insisted he had no knowledge of the origin of the robocalls attributed to RLDF, despite a pledge to investigate the matter.
Admittedly, some of these connections may be unclear and others strewn with mud. Nonetheless, what is the citizenry to think about the rule of law entrusted to the AGs of their respective states, whether Democratic or Republican? Assuming, even in the best case, reservations about some fraud in the 2020 election, the fact of a duly concluded election is not seriously in doubt. Refusal to accept that result is mere obstinacy or, worse, a conspiratorial belief. That is hardly an expectation that an electorate shares. Worse, promoting that myth is destructive.
Rules are not for fools unless the rulers believe so. Elected officials with governance responsibilities are not in office to pursue fantastical notions to the detriment of those who elect them. Partisanship and the rule of law, at this juncture, cannot co-exist.