Government by lawsuit

Connecticut’s Attorney General’s Office long ago overflowed its statutory and historic banks. The office, one of the oldest in the state, evolved from what had been known in the colonial period as the king’s lawyer. Leaving aside for the moment the recently accrued kingly powers of Governor Dannel Malloy – the inability of the Democrat dominated General Assembly to cobble together a budget within the prescribed time period has bestowed on Malloy plenary powers once associated with royalty – the Attorney General’s Office was, before the advent of Attorney General Joe Lieberman, a relatively modest affair.

“Under Connecticut General Statute 3-125,” The Connecticut Law Tribune tells us, “the Attorney General has the duty to appear for all constitutional officers and all heads of departments and State boards…in all suits and other civil proceedings…in which the official acts or doings of said officers are called in question.” In short, the office is supposed to represent the governor and state agencies in legal matters. Attorney General George Jepsen is still, to deploy a euphemism, the king’s lawyer – plus.

It is the plus that is disconcerting. The authorizing statute mentions nothing about suing Presidents.

“Connecticut Attorney General George Jepsen” a recent Hartford Courant story advises, “has filed or joined a growing number of lawsuits against the Trump Administration. In just seven months, Connecticut has filed twice as many legal actions challenging federal agencies under President Donald Trump as it did during the previous three years combined under the Obama administration.”

It comes as no surprise to learn that U.S. Senator Dick Blumenthal, for two decades Connecticut’s Attorney General, is pulling at the same oar. Recently, Blumenthal filed a suit against President Donald Trump for having overstepped constitutional boundaries. Blumenthal’s nuisance suit claims that Trump has recklessly overleapt the emolument clause of the U.S. Constitution.

As Attorney General, Blumenthal, some would argue, overstepped his own statutory obligations by turning his office into a consumer protection operation outrigged with subpoena powers. Authorized by statute to represent the state in suits brought against it, Blumenthal earned political chits – and rave reviews from Connecticut’s media – by flipping the statute. Under Blumenthal’s regime, suing or threatening to sue businesses on behalf of consumers became the prime directive of the office, a far cry from representing the governor and state agencies in legal actions brought against the state.

Naturally, difficulties arose along the way. When he assumed office following Blumenthal’s lengthy career as the state’s premier consumer protection lawyer, Jepsen quickly dismissed hundreds of cases left on his plate by Blumenthal, who had hit upon a novel method of jurisprudence. Blumenthal quickly learned that low asset targets could be forced to make plea bargains favorable to the state by tying up their business assets and holding them by the toe until they had become amenable to plea bargains. The legal bullying was remunerative. Money “earned” by Blumenthal made its way into the state treasury; Blumenthal was able to burnish his growing reputation as Connecticut’s white-hatted consumer protector; and the only losers were some small time business thugsat least, that is how they were represented by Blumenthal in his sometimes daily media releases.

Martha Dean made an issue of Blumenthal’s overreach during her campaign for Attorney General. Jepsen, once Connecticut’s Democratic Party Chairman, vowed to keep a lower profile and sopup Blumenthal’s spilled milk once he achieved office. And he did so, dismissing hundreds of so called “whistle blower” cases without stopping to explain how his office was supposed to represent both whistleblowers and the agencies against which they were blowing their whistles; a prosecutor would have to twist himself into a pretzel to be able justly to represent both the accuser and the accused in a fair trial, a posture neither Blumenthal nor Jepsen found ridiculous.

The urge to overflow statutory and constitutional bounds within the Attorney General’s office will be irresistible for men and women motivated by political ambition.

“If men were angels,” said Alexander Hamilton, Broadway’s newest star, “no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

There’s the rub. How do you oblige presidents and governors and legislators and judges and attorneys general to control themselves when statutes and constitutional boundaries are so easily surmounted by political ambition and politicians on the hunt for status, public acclaim and votes?

You do it, always and everywhere, by insisting that constitutional and statutory boundaries defining offices are not violated with impunity, however beneficial the violation might be to politicians who have become media stars.

Columnist

Theurgeto overflow statutory and constitutional bounds within the Attorney General’s office will be irresistible for men and women motivated by political ambition.