What does the Attorney General do?

The numerous specific constitutional and statutory duties assigned to the Idaho Attorney General can be placed into two overall primary responsibilities to: (1) provide legal advice and legal services to specified state entites and officers and (2) to represent the state and specified state entities and officers in court. Idaho Code § 67-1401. Many of the specific duties of the Attorney General are outlined in Title 67, Chapter 14, Idaho Code, but there are many other specific duties that are contained in the Idaho Constitution and scattered throughout the Idaho Code.

The Attorney General provides legal advice and legal services.

In representing the state and its people, the Attorney General represents the people collectively and not individually. That means, for example, that the Attorney General is required to, “give an opinion in writing, without fee, to the legislature or either house thereof, or any senator or representative and to the governor [and other state executive officers] when requested, upon any question of law relating to their respective offices.” Idaho Code § 67-1401(6). Specifically, Idaho Code §67-1401(2) gives the Attorney General the duty, “to advise all departments, agencies, offices, officers, boards, commissions, institutions and other state entities in all matters involving questions of law.” The Attorney General represents the people collectively, not individually, by providing legal services and advice to the elected and appointed representatives of the people.

The Attorney General Issues Legal Opinions

In fulfilling the statutory duty, the Attorney General doesn’t just issue opinions for the fun of it. Instead, the Attorney General issues: (1) legal opinions; (2) to the named state entities and officials; and (3) when requested.

Recognizing that the Attorney General is subject to the principal of limited government, that means that the Attorney General issues legal opinions (not personal or policy opinions) and issues those opinions to state entities not to Idaho businesses or the public at large and does so, upon request and not because the Attorney General wants his or her own opinion to be heard on a matter.

One criticism levied by one of my opponents is that I failed to issue a legal opinion or advice to Idaho businesses concerning the Governor’s actions surrounding COVID-19. To do so, however, would have violated the duties of the Attorney General. As I mentioned, the Attorney General issues legal opinions to designated state officials, not to Idaho businesses or to individuals. Idaho businesses and individuals receive their legal advice from their own attorneys. If you are going to run for the office of the Attorney General, don’t you think you should have some understanding about the basic duties of the office? I do.

Whether you like it or not, the law allowed the governor to issue the orders he did. My duty was to look at the traffic light (the constitution and statutes passed by the legislature) and tell the Governor whether the light was red, yellow, or green. In this instance, the light was green and authorized the Governor to act. It would have been improper for me to lie to the Governor and tell him otherwise. That does not mean that I agreed or disagreed with the Governor’s actions. I simply performed my duty as the Attorney General and provided proper legal advice. I will provide more detail in the discussions below.

What is the difference between policy and law?

This is a critical issue and many people, including some legislators, are confused by this issue. In a very simplistic explanation, policy is what we think the law should be. The law is what the law actually is and is found in the constitution and statutes passed by the legislature. Often what someone thinks the law should be is different from what the law actually is. (Incidentally, laws can also be passed by citizens’ initiative or referendum. Also, by virtue of the constitutionally granted Judicial Power, the Court has the authority to interpret the law.)

In passing laws, the legislature examines a number of policies and chooses among those policies. For example, let’s suppose the legislature is deciding whether it should be against the law to rob a bank. The legislature can choose either to make bank robbery a crime or not make it a crime. By passing a law that makes bank robbery a crime, the legislature has accepted that policy and rejected the opposite policy of bank robbery not being a crime. Every law has an embedded policy choice. The Attorney General is not elected as a policy maker. Instead, as an executive officer, the Attorney General is to enforce the law, not the policy. If you don’t like law, I am not the person who can change it. I am required to enforce the constitution and laws as they are written. The power to change the law is in the hands of the legislature. They are the policy makers.

The Attorney General represents the state in court.

Idaho law clearly imposes the duty on the Attorney General, “to perform all legal services for the state and to represent the state and all departments, agencies, offices, officers, boards, commissions, institutions and other state entities in all courts and before all administrative tribunals or bodies of any nature.” Idaho Code § 67-1401(1). Therefore, when the state is sued or sues someone, the Attorney General represents the state in court.