Introduction to State Attorneys General — StateAG.org

The video link is in the URL below. A text of the presentation can be found at: A Brief Introduction to the World of State Attorneys General. If you have problems with this PDF link, you can also find it posted in below.

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An Overview of the Office of State Attorney General

Professor James E. Tierney, Former Attorney General of Maine

Lecturer on Law at Harvard Law School

August 14, 2022

1. Welcome to AG 101:

My name is Jim Tierney, and I am a Lecturer on Law at Harvard Law School where I teach classes, counsel students, and direct the State Attorney General Clinic.

I had the honor of being the Attorney General of my home state of Maine for 10 years. For the last 30 years, I have taught about AGs, confidentially consulted with AG and AAGs of both political parties in well over half the states, and every two years I participate in the orientation of the newly elected AGs.

The purpose of this presentation is to share an overview of the office of state attorney general.  The views are mine and not designed to give legal or policy advice because after all, every state AG is different and there are those who will disagree with me!

The text of these remarks is attached to this video and are accompanied by materials found at the StateAG.org at the “AG 101” portal at my personal website, https://www.stateag.org/ag-101/intro

And you can always turn to http://www.naag.org where there is a wealth of valuable information about attorneys general.

2. Overview:

 We are the United States of America and since our founding it has been the states that provide the core building blocs for how we govern ourselves.

Attorneys general are the lawyers for our states and every state has always had an Office of Attorney General. Between 12 and 13,000 lawyers currently work in AG offices. In doing so, these career lawyers provide legal advice, prosecute criminal and civil cases, and defend state agencies on issues that impact the lives of all of us.

The reason most of these lawyers have chosen to work for their attorney general is that the appreciate the opportunity to make our government work in an honest and ethical manner. They find their work a way to serve the public interest and turnover is extremely low.

But AG offices are not democracies. At the top of every office is the elected AG who has the final word on what the office will — and will not — do.

And it is here – at the top of the office - where our political environment is making the greatest changes in the Office of Attorney General while the day-to-day operations continue generally unchanged.

I will now discuss both the top of the office and the core of the office in these remarks.

3. The History:

Offices of state attorneys general did not appear overnight. They evolved from the common law of England in the 1600's and were brought to our shores during our colonial times. Every colony, and after our revolution, every state, had an AG. From the very beginning, the state AG was separate from other private lawyers and also separate from the state executive authority.

Our new states were suspicious of the unrestrained executive power of the King. Their new state constitutions took the separation of powers seriously, and the office of attorney general was created to both represent government but also to be a deliberate limit on the power of government to exceed its constitutional and statutory authority. In other words, the Office of Attorney General was designed and structured to make sure all of us – including our own government – put the law first.

The states’ decisions were a deliberate rejection of the federal model where the President appoints the Attorney General of the United States, and the President may remove the AG at any time. This approach has been rejected in all but two states. Only in Alaska and Wyoming can a Governor fire an AG.  All state AGs therefore have some degree of independence. They are institutionally designed to create friction within state government and within our federal system.

But that independence is far from absolute and in an increasing number of states, it is diminishing. Governors and legislatures are increasingly appointing private counsel to provide legal advice and even represent them in government litigation.

AG offices have government clients that restrict and influence what AG offices do. AGs are also limited by budgets, legislative and judicial oversight, specific statutes, and case law, and of course state bar organizations where opponents are increasingly accusing AGs of ethics violations.

All of this means that the historic and cultural independence of AGs is circumscribed by factors even before considering political restrictions. In short, because an AG is independent does not mean that an AG can do whatever he or she wants.

In today’s polarized world the political restrictions on an AG are now greater than ever.  Today AGs must constantly scramble to secure political and donor support from those subject to their jurisdiction to stay in office. And there can be no question that the decisions of AGs are tremendously influenced by their partisan beliefs.

While at its core, the institutional commitment of an AG and his or her Office is to uphold the law even when that law may not reflect the personal views of the AG increased partisan pressure is making that very difficult and challenges that fundamental commitment. 

These pressures have resulted in AGs marching increasingly in partisan lockstep on a myriad of major issues and making it increasingly difficult for AGs to not go along with their political compatriots and supporters.

Enforcing the law requires countless nuanced decisions that inherently involve judgment, and so are the decisions of AGs marked by their personal views? And life experiences?  Of course!  That is why they are elected officials!

And as AGs themselves take political positions during their elections it is only logical to conclude those personal views are increasingly reflected in their legal positions.  This is why enforcing the law intersects with politics and is often in the eye of the beholder.

So, let’s go a little deeper. What are AGs supposed to do? What resources do they have available for them to do it?

And finally, how to they get the job done?  [4 & 5 omitted]

6. What AGs do:

AGs are the lawyers for state government and generally are responsible for its litigation. On the civil side, AGs advise state agencies, who also often have in house counsel who advise but are not allowed to litigation, defend the state when it gets sued, bring actions on behalf of state agencies, and bring enforcement actions on behalf of the state, particularly in the areas of consumer and antitrust.

While historically, and in most states, AGs have been responsible for all state litigation, the trend of state appellate cases is to allow a Governor -- or even a state agency -- to also appear in court without the permission of the AG or even in opposition to the AG.

AGs also issue legal advice to other levels of government and to the public by way of formal and informal legal opinions.

On the criminal side, in three states, Alaska, Delaware, and Rhode Island, the AG has exclusive criminal jurisdiction, and in almost all other states, AGs have some criminal jurisdiction that is often concurrent with local prosecutors.  AGs also are increasingly investigating allegations of police misconduct.

And all AGs have a statewide presence that is larger than their precise jurisdiction. 

In other words, because they are the state's chief law enforcement officer, they are often expected to articulate positions regardless of their office's actual legal role. AGs may stand in a “bully pulpit” and take positions on a myriad of issues where they may not actually be able to take legal action.

Example: Let’s say that an AG has no direct criminal jurisdiction over domestic violence because in their state the crime is the responsibility of local prosecutors.  Does the lack of direct prosecutorial authority mean that the AG has no responsibility regarding domestic violence? Hardly! The AG advises state agencies, trains, and oversees police officers, and collaborates with legislators, district attorneys, and the Governor. The AG could also appoint a Domestic Violence Task Force, conduct public education initiatives, speak at high schools, hold press conferences in support of District Attorneys and advocacy groups, testify in Congress, and participate nationally with AGs of other states that do have jurisdiction.

In my view, if an AG without jurisdiction takes a leadership role on an issue it doesn’t mean that he or she is playing politics. It is just an AG doing the job that the AG believes should be done.

AGs by nature are activists.  They are there to do something.

7. Resources:

 Do attorneys general have the resources to do their jobs?

The largest state AG office – California – has about 1200 civil service lawyers and some of the very smallest states have about one hundred. Most have between 180 and 220 lawyers and some AG offices have expanded their staffs to include economists, technologists, highly specialized support staff, and my favorite, the librarians.

The vast majority of these lawyers are career lawyers. AGs may come and go and even though most AAGs serve “at the pleasure” of the AG, i.e., they have no job protection, the reality is that most AAGs serve through many different AGs of both parties.

Although it varies, many AG offices are funded directly by legislative appropriations for no more than 30% to 40% of their budget. The rest comes from the budgets of client agencies, tort defense funds, federal grants, or settlements.

All AGs authorize outside counsel for some purposes. Usually, it is for routine matters and attracts no attention. (Bill collecting, conflict of interest, representation is rural areas far from the State House, etc.).

Increasingly, some attorneys general of both parties are controversially reaching out to private firms or even advocacy groups for assistance on “hot button” issues. Others authorize contingency counsel on potential fee generating litigation. Tobacco and opioids are the two prominent examples, but there are many others.  Notwithstanding this trend for outside counsel, most of the litigation work done by state government is by full time AAGs.

8. How they do it

Although the size and jurisdiction of the offices vary significantly, their organizational structure is functionally similar.  The AG may make the final decision, but the decision making demands an office structured in ways that funnel the decisions into the top of an office.

For that reason, almost all offices have a Chief Deputy, Chief of Staff, Solicitor General, Civil Deputy, Criminal Deputy, and Public Protection Deputy. Named differently in some states, they all have individuals who perform these functions.

And the wise AG will check with all six of these individuals before making any significant decision.

Look at the chart here at www.stateag.org , and follow along.

Attorney General — Forty-three AGs are elected; all are partisan and all but two cannot be removed by the Governor. All are “political” in the sense they need to make decisions that have public policy or political implications.

Chief Deputy — The Chief Deputy is responsible for the day-to-day operations of the entire office by making sure that all the pieces fit, that public positions are internally consistent, the budget followed, and that the AG has all the information necessary to make the final decision. Chief Deps are often the “brake” in an AG office. The Chief Deputy is the person not only most likely to say “no” to line AAGs and is also the person who most likely to tell an AG personally that they cannot do what they want to do.

Chief of Staff — The Chief of Staff is often a non-lawyer (or non-practicing lawyer) with extensive political and policy skills. The COS often arrives direct from the campaign, and is in charge of media, legislative relations, and outside constituencies. The Chief of Staff is responsible for carrying out the AG’s stated public agenda, and consequently may go head-to head with the Chief Deputy or the AAGs who are more focused on the legal responsibilities, and often do not understand or appreciate the role of the COS.

Solicitor General — The Solicitor General is the person responsible for the Office’s the most sophisticated legal analysis. This person is responsible for supervising or handling the state’s appellate work, amicus briefs, and AG opinions. Although formerly SGs had a low profile, recent national litigation has dramatically elevated SGs role.

Because states appear before the U.S. Supreme Court more than any party other than the federal government, and because AGs increasingly challenge federal authority, SGs now often argue the most important legal issues of our time.

Civil Deputy - States get sued all the time, and someone has to defend. Always the largest part of any AG office, the Civil Deputy leads the “government bureau” that advises and defends state agencies. The Civil Deputy often tells other senior staff that they cannot do what they want to do either because of resource limitations or because it would contradict legal positions taken in defense of the state. The Civil Deputy also must say “no” to agencies that want to exceed their authority, that want to bring or not settle weak cases, and that badger the AG for the right to hire outside counsel. Because the Civil Division is usually funded from the budgets of “client” agencies, agencies often do not appreciate “their” lawyer telling them “No.”   

Criminal Deputy — Almost all AG offices have some criminal jurisdiction. While in three states it is exclusive, almost everywhere else it is shared with District Attorneys. Sixteen AGs run statewide grand juries, many handle all criminal appeals, and they often provide prosecutor support to rural areas or upon DA conflict. In the last dozen years, almost half of the AGs have been pressed into investigating — and where appropriate prosecuting — police misconduct cases.

Public Protection Deputy — The Public Protection Deputy supervises those divisions that allow for direct action by an AG in areas such as Consumer Protection, Antitrust, Charities, and in half the states, Civil Rights and Labor. These responsibilities — sometimes funded by settlements — allow an AG great flexibility and are most apt to reflect an AG’s personal governmental philosophy.

Public Protection is the area where AGs are most likely to work together with AGs from other states and federal agencies by bringing very large cases that can result in billions in damages and restitution to consumers who have been damaged. The AAG’s who handle these cases tend to specialize and work with their colleagues in other states and on cases operate as a single law firm.  For more information, see:  https://attorneysgeneral.org/  Public Protection, along with SGs, generate 75% of AG publicity these days with less than 10% of the staff.

Summary

So, there you have it — the six people the AG should want to have in the room when making an important decision because they have different perspectives. Together they give the advice to the AG who ultimately makes the decision alone.

And remember, they all know each other across state and partisan lines. All the Chief Deputies know the other Chief Deputies, the Public Protection lawyers know each other, the SGs know each other, etc. Information is therefore exchanged across state lines is increasingly not just from AG to AG, but also on staff levels who often operate as single multistate national law firm.

National organizations:

There are several national organizations that deal with attorneys general, and I will discuss just three of them.  

National Association of Attorneys General (NAAG):

NAAG serves as the non-partisan organization that represents attorneys general. NAAG hosts several national, regional, and substantive conferences for AGs and their staffs. NAAG and its professional staff provide the operating infrastructure for many AG initiatives.

NAAG is especially active at the AAG level where its training arm of NAAG — NAGTRI — provides high quality training to AG offices in every state.

NAAG.org is the ultimate website for finding out what AGs are doing including a compendium of information on AG powers and duties. https://www.naag.org/.

NAAG is funded by annual dues from each state and from multistate settlements. NAAG also oversees the dispersal of funds from the historic tobacco settlement.

Importantly, NAAG accepts no corporate funding

Electoral Politics

There is no such a thing as a non-partisan attorney general.

All AGs are either Republicans or Democrats. AGs are not immune from the polarization that increasingly marks our political discourse, and this leaves them in serious disagreement with half of their colleagues on many major issues that arise within their jurisdiction.

All AGs are members of either the Republican Attorney Association (RAGA) or the Democratic Attorney General Association (DAGA). Both organizations are led personally by committees of AGs and exist to serve the political needs of their members including polling and strategy. Each is well staffed and raises substantial funds from a wide variety of entities, including corporations and “dark money” political action committees.

Both RAGA and DAGA host at least six meetings a year attended by donors who are subject to the jurisdiction of AGs. Some of these donors are in actual litigation with the AGs they meet in private settings. Attendance at these meetings is a major time commitment by AGs and has resulted in AGs now spending far less time with colleagues of the opposite party than they have in the very recent past.

RAGA and DAGA are committed to supporting their partisan federal counterparts and attorneys general now sign on to letters and amicus briefs circulated not through NAAG but through either RAGA or DAGA and thus contain no signatories of AGs from the opposite party.

Yet in the midst of this polarization the vast majority of AG staff continue to have no contact with either RAGA or DAGA. Elections have consequences at the top of every AG office, but for thousands of AAGs their non-partisan work for state government goes on unchanged.

Federal government 

All AGs cooperate with the federal government on a non-partisan basis on many, many issues. State government receive billions in federal funding and pursue numerous joint federal and state cases especially in the area of consumer protection and antitrust where state and federal cooperation is often specifically authorized by federal statute.

That being said, the AGs of the political party not controlling the White House increasingly push back on federal initiatives the other side is promoting so the common narrative is that AGs increasingly are political opponents of whoever controls the White House.

As the importance of these issues rise – election integrity, abortion, climate change, gun safety to name but as few – the tension among the AGs has risen. Because AGs now often campaign against other AGs, confidential communication within the AG community is far more guarded and rarer than it was only a few years ago.

Conclusion

This is my personal view of the current state of state attorneys general as they play a much larger role on national issues than they did 30 years ago.

Discussion of these trends and predictions for the future are best left for another day. 

Class dismissed, and thanks for listening!