McKenna’s Suits Against the Republican Party and BIAW

Yesterday’s entry about the lawsuit against the Republican Party drew a comment that warrants notice. James Tierney of Columbia Law School’s National State Attorney General Program saluted Rob McKenna’s decision to bring the lawsuit against the Republican Party. I perhaps did not call attention to my recognition of this decision as a commendable action. Earlier I praised McKenna for suing the B.I.A.W., a major Republican contributor.

Mr. Tierney says that it was appropriate for the Attorney General’s office to bring the action instead of having an independent law firm pursue it. This is certainly something beyond my expertise, but the decision does at least raise a question of a conflict of interest. Given the wide ranging responsibility of the Attorney General’s Office, I am sure that this comes up with some frequency and that it has been adequately resolved in terms of professional responsibility.

My question is that given the appearance of what might commonly, not professionally, be viewed as a conflict of interest, the A.G.’s decision not to pursue immediate action, as is sought in the lawsuit by the two former state supreme court justices, is politically questionable. The citizen suit makes it appear that the A.G.’s office might be going lightly on the case by not seeking immediate remedies.

I should emphasize that there probably is a perfectly sound basis for not seeking the relief sought in the citizen’s suit. In fact the citizen’s suit asks the court for emergency permission to gather evidence so the matter can be decided shortly. The A.G.’s office may very well have determined that there was no such evidence or that the search for such evidence was inappropriate in light of the immanence of the election.

Much of this speculation, however, might have been avoided by hiring outside counsel to pursue the lawsuit. There is certainly nothing impermissible about the Attorney General’s office handling the case, but in the emotional charged context of this election, it may have been prudent to avoid the faintest question about the role of politics in the decisions regarding the litigation.

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