Home 2019 Elections BV Interview: Democratic Virginia Attorney General Candidate Mark Herring

BV Interview: Democratic Virginia Attorney General Candidate Mark Herring


This morning I had the chance to speak with State Senator Mark Herring (D-33rd, Fairfax/Loudoun), who is running for Attorney General of Virginia. Overall, my impression of Sen. Herring is that he’s a great guy with a lot of integrity and sincerity, running for AG for all the right reasons, and with a view of the AG’s office that’s a refreshingly stark contrast with Ken Cuccinelli’s lack of professionalism and politicization of the office since he took office. I’d also note that Sen. Herring has proven he’s able to win elections in a “purple,” “swing” area of Virginia.

As you read this interview, I think you’ll agree that the contrast between Sen. Herring and Ken Cuccinelli (and also Cuccinelli proteges Mark Obenshain and Rob Bell, the Republican candidates for AG in 2013) couldn’t be clearer, not just on the issues, but also in terms of Herring’s view that the AG’s office is there to enforce the rule of law and to stand up for mainstream values (and ALL Virginians), not to pursue a political or ideological agenda and to twist the law in order to fit that agenda, as Cuccinelli has done time and again. Finally, my strong impression is that Sen. Herring sees the Office of Attorney General as an important position in and of itself, not just (or mostly) as a stepping stone to higher office as others (e.g., Ken Cuccinelli) have viewed it.

1. Please tell us a bit about yourself and why you decided to run for Virginia Attorney General in 2013.

I grew up in Loudoun County, went to college at UVA and Richmond Law [graduated in 1990], and I wanted to come back to my hometown to practice law…and raise my family in the same hometown where I grew up. My wife and I have been married for 23 years…after about 7 or 8 years of practice I was able to take a little more time away from my practice to put into community service, ran for the County Board of Supervisors in 1999, and to everyone’s shock and surprise I won. [My wife] Laura and I have two children. My daughter is a second year at UVA, and being a UVA grad myself…of course we followed the 17 days of drama this summer with great interest. Our son Tim is a junior at Loudoun County High School, he’s tall (6′ 4″), and basketball is one of the central focuses in his life, and unlike his father he’s quite good. Last year as a sophomore he was a starting forward on the varsity squad. As a parent, it’s been great to see his passion and his hard work get rewarded…

I ran for the Board in 1999 and won. In 2006, I ran in the special [election]. If you remember back in 2005, Bob McDonnell had just won the Attorney General’s race, and he asked Bill Mims, who was my predecessor, to be his chief deputy Attorney General. That created the vacancy in the 33rd, and we won every precinct…Fairfax Democrats really came out, really all over Northern Virginia; we had people volunteering from Winchester and Frederick Counties to knock on doors…[I was] reelected in 2007 and 2011.

I started looking at the AG’s office a lot closer very soon after Ken Cuccinelli took office. The first thing he did, probably before he took office, was his attempt to redesign the state seal, that was like a precursor of things to come I guess. But the first major decision that came out of his office was the incorrect and harmful opinion that our boards of visitors cannot include sexual orientation as a part of their non-discrimination policy.

Soon after that, Cuccinelli filed a civil investigate demand against the climate change researcher at UVA, Michael Mann, and that’s really when I began to look closely at what he was doing…I pulled up the Fraud Against Taxpayers Act on [my laptop] and read it, and I didn’t see how any reasonable lawyer could think that the statute was intented to cover something like that. Not only was it, in my view, outside a reasonable interpretation of what the statute was designed to address, which was to cover contractors who submit false invoices to the state to get paid for work or services they didn’t do…but it was downright unAmerican to think that the powers of the state government could be applied to prosecute somebody for the ideas they had the conclusions they were drawing from their scientific research.  

That’s when I began to see it wasn’t just an isolated action here and there, where you disagree with what somebody in office does, but a pattern of abusing the powers of the office. Obviously, we have stark policy differences, but I also felt as a lawyer and professionally, that Cuccinelli was crossing the line. As a lawyer one of my first obligations is to give my client objective legal advice, and that means you take out your own personal interests and any other prejudices or hopes and set those aside and give your client objective legal advice…then the client makes a decision on what action to take, and you advocate on their behalf as forcefully as you can within the bounds of law and ethics. What I saw was not only were the actions he was taking obviously starkly different in terms of policy choices, but that he was deliberately doing things that seemed contrary to what I thought the law was because he wanted to get to a policy position that was outside the mainstream. As a lawyer, as a legislator, as a citizen, I felt compelled to step forward.

2. Why did you decide to run this cycle?

I began to look closely at running for Attorney General myself over the last year or two, but the ones I saw lining up on the Republican side [other than John Frey, who was “probably a moderate Republican,” but probably had “close to no chance to win the nomination”] – Rob Bell and Mark Obenshain…having served with them, I know what their records are, and they have the records to back up their view that Ken Cuccinelli has done a great job and is a role model to follow. I began to see that we needed to have an Attorney General who understood what the office was about differently, and someone who had the willingness to apply the law evenly and fairly instead of saying it was something other than it was because it helped their personal ambition or ideology.

What got me thinking we needed a major change was not just because I didn’t think the right person was there, but that so much good can be done with the office if the right person were in it.

3. What do you believe the Virginia Attorney General’s main role should be? Which issues, and which interests, should the office focus its time and energy on?

The Office of Attorney General is all about protecting the public interest. That’s why I think it’s so important it is an elected office, because the person who holds it is the one who is able to decide what is in the public interest and what legal resources are going to be directed to what the Attorney General thinks is in the public interest. That’s why it’s important that we have an elected Attorney General, because that person needs to be accountable to the people.

The Office of Attorney General can do so much with the resources it has – over 400 people in the office, probably over half of whom are lawyers – and those resources can be deployed in a lot of different ways, according to what the Attorney General thinks is in the public interest. Instead of hauling off, fighting things like the health care law and blocking environmental protection and persecuting a researcher, those are very costly, they take up a lot of lawyers’ time and resources in the office that ought to be directed in other ways to help other ways to help other people, to help everybody. There are veterans entitled to benefits, why not use the office to help them get the benefits they’re legally entitled to. Why not use the office to protect seniors from financial fraud and abuse…make sure we have a fair marketplace for both businesses and consumers, there are a lot of things the office of Attorney General can do. But because of Ken Cuccinelli’s personal ambition and his ideology, he’s been abusing those powers and resources to pursue those objectives instead of doing what he should be doing, which is helping all the people in these other ways. So, what got me interested in the first place was how Cuccinelli I thought was abusing the powers of the office, but ultimately what made me decide to run was knowing that the right person in the office can do a lot of good for all Virginians. And I think I’m the right person, I’ve got the right kind of experience and know how to do it.

…[Ken Cuccinelli’s] politicization has undermined the credibility of the [AG’s] office, so now when the AG takes legal action or issues an opinion, people don’t really know if that’s based on what the law really is, or if it’s helpful to his effort to become governor or to appeal to the far right on the ideological spectrum. (I asked if he thought the AG’s office had lost credibility at this point.) Absolutely, absolutely. Virginians need to know, if the AG’s going to go after something, it’s based on what the law actually is, not some political objective. And that’s what I hear from the business community as well, what’s important for them is an even application of the law…the concern of [the business people I know] is if there’s an AG who really doesn’t care whether the action that the AG’s office takes is based on the law or not, then they don’t know if they’re going to be wrongly singled out because it helps the AG’s political objectives; that’s a big concern of theirs.

4. How is your experience as a lawyer, county supervisor and state Senator important to both governing and running for office?

I think it’s important, particularly for the office of Attorney General, because…the AG is the chief law officer of the state, sort of the general counsel for the state, and in that general counsel role, you need to have a breadth of experience and exposure to different areas of the law, because there are so many of them, from consumer protection to utility regulation to transparency in government, and a wide variety of legal issues that are going to come up, so having a general practice, having a wide range of experience is really helpful. The combination of over 20 years of a general practice like mine, plus the public policy experience in both state and local government I think is very helpful preparation for being Attorney General. You’ve got to have a solid grounding in both law and public policy; the office of AG occupies the central intersection between law and public policy.

5. If we get the “Obama coalition” – young people, suburbanites, federal employees, Latinos, Asian Americans, African Americans, etc. – out to vote next year, we know that we will win this election. How do you plan to motivate that coalition in an odd-numbered, “off year” election?

The Democrats generally are going to need to make sure they communicate with the voters and talk about the issues that motivated them to come out and vote in this last election…a lot of the same issues, and the stark contrast [with Republicans] exist at the state level as well. If we can talk to the voter groups on those same issues and let them know that the same issues are important again, then I think we’ve got a good opportunity to get them to vote in the upcoming election as well.

For me, I also need to talk a little bit more about what the office of Attorney General is about, so they understand that those issues are relevant to an AG’s race. And if you look at what Ken Cuccinelli’s done and compare that to Obama, that contrast is very clear. Cuccinelli fought against health care, the president fought for it. Cuccinelli been denying climate change, the President realizes we need to do more in alternative energy. We can think of a whole lot of them – women’s rights, LGBT issues (Obama came out in support of marriage equality, while Cuccinelli has used every opportunity to bash the community). [We should be able to] link the Republican AG candidate to Cuccinelli, because they are falling in line and truly believe the same thing. We should be able to get people interested in the state election. War on women…Cuccinelli would not sign onto a letter that other states AGs urging Congress to reauthorize the Violence Against Women Act…Maybe it’s time that the state have a conversation about what we’re doing to be like in the future; which vision of Virginia’s future do we want to have?

(I noted that Tim Kaine talked about “divisive social issues” very well in his campaign, as not just some narrow or small issues, but as economic issues for the future prosperity, competitiveness, attractiveness of Virginia. Mark Herring clearly agrees with that view.) It is true, on all of those issues. You could tie going after the climate change researcher; if we’re trying to attract technology companies and cutting-edge research to Virginia’s universities, well how does that square when the AG is hauling off, using the full power of the state government to persecute a research. Same thing with LGBT issues. Business people, regardless of how they feel about marriage equality, recognize that if they’re not more open and friendly they’re going to lose a lot of very talented employees. So it is an economic issue, also where we’re going to be heading as a state. [Cuccinelli’s assault on climate scientist Michael Mann] sends the wrong message about Virginians to other parts of the country and makes people we’re a backward state and hostile to science, which is not the case.

6. Any thoughts on your potential Republican opponent, either Mark Obenshain or Rob Bell?

Their voting records are very similar, and their philosophies are identical, so in terms of how I would view the campaign, I don’t think it would change depending, regardless of which one gets the nomination…Rob Bell said [at a Tea Party rally after the Supreme Court upheld the healthcare law] “we can’t trust the courts to protect your rights anymore.” That is a striking statement [for a] member of the Virginian State Bar and someone who wants to be Attorney General…Both [potential Republican nominees] view Cuccinelli as a role model, they think he’s done a great job, and with Cuccinelli at the top of the ticket, they’re going to continue to defend his policies…and not only that, they truly believe in him…They not only voted for but advocated for the pure version of the ultrasound bill; their records on just about every single issue are just like Cuccinelli’s…


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