What Ken Cuccinelli Could Learn From Spider-Man's Uncle

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Virginia Attorney General Ken Cuccinelli is not back in the news this week only because he's never out of it. Most recently, a Virginia judge shredded his "civil investigative demand" for all the records of a scientist whose research affirms global warming. The judge pointed out that Cuccinelli's office had not produced any evidence of any fraud or wrongdoing--and that of the five grants the Virginia AG wanted to investigate, four didn't even involve state funds, meaning that the AG has no jurisdiction.

Even the most charitable imagination is prone to turn dark when a government official wants to investigate a private citizen for the offense of controversial writing, without any evidence and without any legal basis. Cuccinelli's picture will likely someday adorn the dictionary entry for "overreach."

A recent profile of the AG in the Washington Post quotes friends as insisting that Cuccinelli is an idealistic type, prone to question even his own conduct. One hopes that is true, but the rest of us could be forgiven for finding the evidence thin.

By their fruits shall you know them, and the Cuccinelli tree has borne some strange fruit lately. In the seven months he has been in office, the new AG has produced the following opinions:

  • Virginia's schools and colleges don't have the power to protect gay and lesbian faculty and staff against discrimination;
  • Virginia's Board of Health has the power to regulate abortion clinics, even though the General Assembly voted down a bill--supported by Cuccinelli--to grant it to them;
  • Virginia law-enforcement personnel already have the power to question and detain persons suspected of immigration violations, the way Arizona police will if federal courts approve that state's anti-immigrant law;
  • Loudoun County's government may commemorate "the birth of Jesus Christ" with a display of "innately religious symbols" as long as they are balanced with "such secular items as lights, candy canes, wreaths, poinsettias, fir trees, snowflakes, and red and green ribbons."

Strikingly enough, all these opinions are completely in line with the policy views of a politician named Cuccinelli, who wanted to outlaw abortion even in cases of rape or incest, who sought to permit guns to be carried in bars and restaurants, who doubted the reality of global warming, who wanted to strip American-born children of their citizenship for their parents' immigration sins, and who laid out for a right-wing radio audience a method to challenge Barack Obama's American birth in court (later, to a different audience, he insisted he was speaking "hypothetically").

Each picks at a scab on the body politic that was in danger of beginning to heal. As Dahlia Lithwick has pointed out, each opinion neatly dovetails with Cuccinelli's ill-concealed ambition to succeed Governor McDonnell in 2013. And finally, three of the four come in response to a request from state Del. Robert Marshall, who was one of Cuccinelli's closest political allies when both were in the General Assembly.

(Only in one way has Cuccinelli's analysis of the law diverged from his previous political views. As a state senator, he wanted to make it a crime for a journalist to intrude on moments of family grief. But as AG, he was one of two state attorneys general to refuse to support a Maryland law preventing anti-gay protesters from interrupting the funerals of American military personnel killed in action. Perhaps he had an encounter on the road to First Amendment Damascus; then again, perhaps the First Amendment really does protect anti-gay speech but not what Cuccinelli called "scuzzball reporters.")

Beyond his opinions, Cuccinelli has sued the federal government in the name of the Commonwealth to void the Environmental Protection Agency's carbon emission standards and to invalidate the new national health care law. And, as noted above, there has been the embarrassing persecution of climate scientist Michael Mann, who disagrees with Cuccinelli about global warming and had the ill luck to work for a time at the University of Virginia.

The problem with a rogue attorney general is that the office is so powerful. This power doesn't arise out of anybody's plan for government but out of the moss-grown history of the English law. The office's roots--as lawyer for the king--run to the reign of Edward I, and the attorney general's powers were a matter of common law, subject to ingenious expansion and only vague limitations. By the time the office crossed the Atlantic, a colonial attorney general had unchecked authority to go to court to enforce tax collections, protect Crown property, prosecute crimes, reclaim grants improperly collected, sue individuals for torts against the government, remove officials wrongfully holding office and install those properly appointed, enforce wills and trusts, abate public nuisances, and protect the rights of lunatics.

As heirs to this common-law tradition, most state AGs don't work for the governor, or for state agencies, but for their own conception of "the public interest." States have made some attempts to rein in the office with statutory limits, but in most states the attorney general remains a kind of one-person Justice League of America, who both pronounces the law and enforces it.

As Uncle Ben Parker would explain, with great power comes great responsibility. Everyone knows an attorney general is in some sense a political figure. In the federal government, the AG is appointed by the president and is a part of the administration. In most states, including Virginia, the AG is elected and often goes on to seek higher office.

But the history, power, and special nature of the AG's office flow together to create a sense that--unlike, say, the White House chief of staff or the Texas railroad commissioner--the AG is also in some way akin to a judge, with a duty to keep himself aloof from partisan aims.

When Alberto Gonzales was Attorney General, many observers, right and left, saw in him a partisan hack who would twist the law to the advantage of his master in the White House. That fear stirred a deep unease, and that fear persists today.

Not long after taking office in 2009, U.S. Attorney General Eric Holder was accused of trying an end run around his own advisers in an apparent attempt to prevent issuance of an opinion on D.C. voting rights that went against administration policy. Holder was denounced across the partisan spectrum, even though his maneuver didn't actually set U.S. government policy on the bill. Even the suspicion of partisanship was worrisome.

"The Attorney General's recent action undermines the Constitution's careful design for protecting all our liberties," wrote former Reagan-era Justice official John McGinnis.

Now the same unease has spread south of the Potomac. When an official has the power to investigate, to arrest, to drag citizens into court, and even to rewrite the law, the public mind would like to believe that this official will do so only when instructed to do so by the law--that is, by the collective voice of history, of wisdom, of public values, and of the democratic process.

Few things are more disturbing than the spectacle of a jack-in-office dashing across the landscape obeying a voice in the air that sounds to the rest of us suspiciously like his own.


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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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