By Jim Jones
Tuesday night’s Idaho Public Television debate among the three Republican candidates for attorney general produced some unsettling takeaways. For one, it appeared that Art Macomber and Raul Labrador were more intent on running against Gov. Brad Little than challenging incumbent Lawrence Wasden.
Macomber said he would have sued Little over COVID restrictions. Labrador claimed Wasden had allowed the governor to abuse his authority during the pandemic, that he’d been a “yes man” for Little, and that he legally justified “whatever the governor wants to do.” Labrador said he would stand up to the governor. Wasden correctly pointed out that when the governor or Legislature ask for advice, the attorney general is legally obligated to give them accurate, unbiased legal advice, but he can’t force either to follow the advice — much like the old saying that you can lead a horse to water but can’t make it drink.
Wasden mentioned the elephant in the debate room — that Labrador is running for attorney general as a “stepping stone to become governor.” After all, Labrador gave up a safe Congressional seat four years ago to run against Little for governor. With all of Labrador’s out-of-place criticism of Little in the debate, Wasden’s observation is probably correct.
If Little found it exasperating to have a lieutenant governor who was continually stabbing him in the back, imagine an attorney general using powerful legal tools to do the same for the next four years in his push to become governor. There may be some credibility to the word on the political grapevine that Little urged Wasden to seek another term as AG so as to prevent that kind of Statehouse dysfunction.
To illustrate the dysfunction he could bring to the office, Labrador repeatedly baited Wasden to reveal advice he gave the governor on pandemic response. Ethical rules prohibit lawyers from disclosing confidential legal advice, as Labrador well knows. A lawyer who does not respect basic ethical rules has no business seeking to be the State’s top legal officer.
Labrador lambasted Wasden for failing to join other states’ lawsuits against the federal government. Wasden responded that he often works with other states when Idaho’s interests are at stake and a lawsuit is supported by the facts and law. Labrador had to be chagrined to find out that Wasden had been endorsed by the National Rifle Association the very day of the debate.
The NRA endorsed Wasden for his legal action in four NRA-backed gun rights cases. The NRA praised his “steadfast support and demonstrated leadership on Second Amendment issues.”
Both Labrador and Macomber said they would have joined an ill-fated lawsuit brought by the Texas attorney general, challenging the 2020 election results in four other states. Wasden correctly pointed out that the lawsuit struck at the very heart of federalism and, if successful, would have allowed other states to challenge a wide range of Idaho laws. The U.S. Supreme Court saw the suit as a political stunt and unceremoniously tossed it out in just four days.
Any competent lawyer who reviewed the Texas papers would have recognized that it had no legal merit. It was an embarrassment to everyone who put their name on it. All three Trump-appointed justices voted to unceremoniously toss it. None of the nine justices found any merit in the suit. For attorney general candidates to admit that they would support such a constitutionally dangerous and losing lawsuit is a disqualification from the office.
Wasden was aware that the politically advantageous thing would be to sign onto the suit, but he had too much respect for the Constitution to do the smart and easy thing. It took a great deal of courage to do the right thing — to stand up for the rule of law despite the political consequences. He has repeatedly demonstrated himself to be the trustworthy choice. It is telling that none of Idaho’s former attorneys general or governors are supporting either of Wasden’s opponents.
Jim Jones is the former Idaho attorney general and former chief justice of the Idaho Supreme Court. His previous columns can be found at https://JJCommonTater.com.