Yesterday (Monday) morning, I had a chance to sit down with Virginia Attorney General Mark Herring for an hour or so. AG Herring had a number of interesting things to say on a variety of subjects, including breaking some news. See below for a slightly condensed version of our Q&A, highlights in orange.
Question: What would you say have been your top accomplishments as AG and what do you feel like you have left to accomplish?
Answer: “One of the main things I’ve done is brought a new vision to the office of Attorney General, one where the Attorney General is the people’s lawyer...more than just being the lawyer for the people’s government, but looking out for the people themselves, especially those who are discriminated against, those who are vulnerable, and those who truly need the arm and shield of the law to help protect them. It is that philosophy and approach that has led me to lead the state’s efforts to combat the opioid epidemic…it’s a real epidemic and crisis…we’re losing more than 1,000 Virginians every year to this…We’ve developed a real multifaceted strategy that pairs prevention and education alongside treatment and law enforcement…We’re going to continue using every tool we can to bring this crisis under control. We have transformed how Virginia has responded to sexual and domestic violence…making sure that colleges and universities have a real, comprehensive plan for prevention of sexual violence on campus…But when it does happen, students need to know that when they report an incident they’ll be treated with the compassion that they deserve…
…On health care, where the Affordable Care Act has come under legal challenge time and again, I have been there leading the charge to defend people’s healthcare…On the environment, I led the first state in defending the Chesapeake Bay cleanup plan from legal attack – and we won, and it has been a real success. We’re defending the Clean Power Plan. We’ve filed suit to block the president’s attempt to roll back the clean car rules…We’re making sure that racial and religious minorities in Virginia feel that they are safe and that they are a part of our large Virginia family…It started the first couple weeks after the president took office…we got the nation’s first preliminary injunction against [the Muslim ban]…We are winning in court to protect DACA right now…On all those issues and more, I feel like I’ve really been able to show Virginians what an Attorney General can do for them…
Right now, we’re focused on some criminal justice reforms, especially with reforming Virginia’s system of cash bail; it is really hurting indigent defendants where they can’t afford to get bail…I think there is a better way we can do it and still maintain our public safety goals. We’re working on anti-hate-crimes legislation; we’ve done a series of roundtables around the state to hear directly from Virginia who have been impacted by it…This hate and anti-Semitism and white supremacy that is on the rise is turning violent with increasing frequency, the data shows that…and even people who have lived here for 40 years…have said for the first time in the last two years they’re getting looks and…being denied service at grocery counters…There’s a lot of work to do. Some of that needs to involve policy changes at the state level…in tandem with community building and partnerships…
And continuing to stand up to the Trump agenda. Just a couple days ago we got a terrible ruling from an ultra-conservative judge in Texas…to attempt to gut the Affordable Care Act…we’re not going to let this ruling stand, and as we speak we’re developing strategies to fight the ruling. And who knows what will come down next. The president seems to be adding to my to-do list every day.”
Question: Do you think the hate crime upsurge is a result of Trump or is that a trend that was happening before Trump?
Answer: “I sensed that was beginning to happen before the election; we saw it with graffiti being spray painted on buildings and bridges in Northern Virginia; we’ve seen threats to Jewish schools and mosques. But since Trump’s election, during that campaign, he really sowed the seeds of more division, seemed to give white supremacists and anti-Semites a feeling that they had a champion for them…that they had a fellow travel in Donald Trump who got elected president. Since then, it’s only continued with the actions he’s taken, whether to try to gut DACA, or have the Muslim ban, or demagoging a whole group of people who are immigrants, refugees really trying to flee violence in their home areas and find some safety. So I think all of that has definitely contributed to it. And it is important for everyone, all community leaders, state leaders and national leaders to speak out and condemn this kind of hatred and bigotry, as well as to take action to make sure people are safe…”
Question: Do you think the role of the Attorney General has changed pre-Trump vs. post-Trump? This is clearly an administration that doesn’t respect the rule of law, and a big part of your job is to uphold the rule of law.
Answer: “The work we do as Attorneys General has always been important, but the Trump administration has given Democratic Attorneys General…a very weighty responsibility to hold his agenda in check, to make sure that the norms and institutions which have served our democracy for generations are not burned down and torn down to the ground…When the president or his administration crosses legal lines and Virginians are hurt, I will not hesitate to take him to court and protect Virginians. And this administration has shown a real capacity for following terrible public policy and oftentimes implementing it in illegal ways…So when that happens, I’ll do it myself or join with my Democratic colleagues to make sure he’s held in check and that our constitution is protected and the norms and rule of law that we hold so dear and have served our democracy so well are maintained.”
Question: To play a bit of devil’s advocate, Republicans like Ken Cuccinelli would probably argue that the Obama administration was lawless and it was his job to restrain the Democrats. But this is not like “both sides, this is not flip sides of the same coin or any sort of “equivalence?” This is a difference in kind, quality, quantity, everything right?
Answer: “It is very different in two significant ways. First, the Republican Attorneys General lost a lot of their cases because their legal theories were really weak. And Democratic Attorneys General are scoring win after win in court because our legal theories are sound and well-grounded in the law. Secondly, the Republicans were about taking rights and benefits AWAY from people…they’re trying to take healthcare away…they’re trying to make it harder for a new American to get by, whereas Democratic Attorneys General are in there fighting to protect people’s rights, to protect our DREAMers, to protect people’s healthcare…It is very much a false equivalence, and those are two big reasons why.”
Question: What made you decide to announce a run for governor and why now? You had said in the past that Attorney General is your dream job…
Answer: “I thought very carefully about it, and the work I’ve been doing on gun violence prevention, to protect people’s healthcare, stand up against the Trump agenda has been some of the most important work I’ve been involved with in my life…I feel like while I’ve had a part in making a safer, more economically dynamic and inclusive Commonwealth, I think I can best continue that work as governor, and so I wanted to make sure that I’m going to be ready when the time comes…I [also] think we’ve got good opportunities to pick up the General Assembly in 2019, so…in 2019 my political efforts are going to be all about getting a majority in the Senate and the House of Delegates…The incredible sweep we had last year…has been a real shot in the arm…So I’m going to be out campaigning for our candidates all across the state, working as hard as I can to get them elected.”
Question: A Democratic governor with a Democratic legislature could get a lot done.
Answer: “I think so, and I think we need to start talking about the kinds of things we can accomplish together…start moving forward on a progressive agenda.”
Question: I’ve actually suggested that we propose a progressive “Contract with Virginia,” where we lay out exactly what we as Democrats want to accomplish if we get to govern the state.
Answer: ‘We’ve seen voters get discouraged in the past because they haven’t necessarily seen actions they were hoping would come about if they elected who they voted for….[runs through some of his top accomplishments – marriage equality, Chesapeake Bay, DREAmers, etc – after winning a “real nail biter” in 2013], voters were so enthusiastic, because they could see the real relationship between who they voted for and tangible policy differences that were able to be made because of the election. So I think being able to give voters a reason to come out and vote and support you is something I’ve been all about…We need to look at that going forward into 2019…here’s what we stand for, Democratic values…”
Question: Recently we’ve seen some significant setbacks in court and at the state Water Control Board for the Atlantic Coast Pipeline and Mountain Valley Pipeline. We’ve also seen a large number of violations for the Mountain Valley Pipeline, which your office filed a civil suit…On this subject what other tools can/should the AG’s office bring to bear. Section 401 of the Clean Water Act? Stop-work order? Stream-by-stream analysis? Other? There are a lot of serious questions whether we even need these pipelines – I’d argue we definitely don’t.
Answer: “The actual decisions about whether to approve permits and make decisions about whether the pipelines get approved, those are done by state agencies and different state boards. As Attorney General, I’ve got some very specific responsibilities. I am making sure they are all following the law, making sure they’re given good advice about the limits and extent of their authority, and when there are permit violations or violations of environmental standards as we’ve seen recently with the lawsuit I’ve brought in the Mountain Valley Pipeline, that I won’t hesitate to go after the developers, hold their feet to the fire, and make sure they’re in compliance.”
Question: I’m pretty sure states have significant authority under Section 401 of the Clean Water Act. Whose responsibility is that…in the governor’s bailiwick, the Attorney General’s office…who would initiate such a move to really enforce our authority under the Clean Water Act.
Answer: “Our office gets involved when information about violations are referred to us from the Department of Environmental Quality…I will say we are stepping up that type of enforcement…I think you’ll see more of that in the future as there are violations that are referred to us, we’re going to continue to step that up.”
Question: So basically the Attorney General’s office has things referred to you, not proactive on this stuff?
Answer: “We’re enforcement, so when the Department feels like they’ve done everything they can do with stop-work orders or negotiating consent orders and things like that, then it’s referred to us and they’re starting to do that, which is good.”
Question: Section 401 gives states a fair amount of authority to approve or disapprove, set conditions on pipelines constructed in their states.
Answer: “That would fall under the purview either of the Water Board, Air Board or DEQ.”
Question: Another environmental question; New York’s AG is suing ExxonMobil, saying it defrauded shareholders by downplaying the role of fossil fuels in global warming. How do you see the AG’s role regarding fossil fuel companies (e.g. Massey Energy) based in Virginia that have denied climate science.
Answer: “Each state’s laws are different. What I’ve done is used the visibility of the office to speak out about the dangers of climate change, because it is real, it is happening, and we need to do everything we can in Virginia to move to a more clean energy future. We’ve also gone to court to defend the Clean Power Plan…to fight the rollback in the clean car rules. We are poised to sue the president if he goes forward with offshore drilling that would put our coastline and the Chesapeake Bay at risk…We should be investing more in clean energy.”
Question: Is the Attorney General’s office’s role to go after bad corporate actors in general?
Answer: “One role of the Attorney General IS to go after bad actors when they violate the law, and I do that whenever I see it. So we have re-galvanized our consumer protection section, for example, and we have recovered hundreds of millions of dollars for Virginia consumers who have been ripped off and who really need the money. So we use the laws wherever we can…There was a case where we went after Volkswagen for its violation of our emissions standards…We’ve gotten the largest environmental settlement in Virginia history a couple years ago…Whenever we see a bad corporate actor out there that’s violating the law, we won’t hesitate to hold them accountable.”
Question: I’m curious if you have any thoughts on all the primaries for Commonwealth’s Attorney this year, what might be driving that. Why do you think this is happening now and how do you think this is going to play out?
Answer: “I think it parallels the interest in getting more involved in elections and running for office. We saw a record number of Democratic candidates in the House of Delegates last year, and that trend is continuing. And so I think it’s happening in all kinds of offices, and Commonwealth’s Attorneys are one of them…On those issues, I’m doing what I can to move forward on criminal justice reform. For years, we’ve been working hard on helping with reentry, because it’s tough for those reentering after being in a jail. They’ve got a lot of hurdles to overcome…employment, transportation, housing, there are a lot of burdens out there…We’ve called for reforms to the cash bail system. I was really proud of our former Governor McAuliffe when he moved to restore the voting rights to over 100,000 Virginians…It was the right thing to do, it was historic, and I’d like to see us get rid of that vestige of an old law that shouldn’t be there.”
Question: Several of the Commonwealth’s Attorneys who are being primaried signed onto an amicus brief that basically opposed McAuliffe on that…
Answer: “I was in court defending the governor’s actions and it was the right thing to do, I was proud to stand with the governor on the historic action that he took to restore the voting rights of so many Virginians, and we need to change the law so that it happens automatically.”
Question: On the ERA, what are your thoughts on the right wingers’ claims that it’s too late to ratify the amendment all the horror stories they claim will come to pass if the ERA is ratified? Also, if Virginia passes the ERA, how big a deal would that be?
Answer: “I support Virginia passing the ERA, it’s long overdue. It would be a big deal if Virginia passed it. How great would it be for Virginia to put us over the top?...Congress can always extend the time for ratification, so if Virginia ratifies it and puts us over the top, we may need some Congressional action, but this is something that should have been done a long time ago and I’ve been a big supporter of the ERA for a long time.”
Question: So it’s important, so it really matters; passing the ERA in the upcoming session has significance; it’s not just symbolic or anything like that?
Answer: “It means that Congress can extend the time period for ratification and put it into the Constitution if Virginia and other states ratify it. I think we need to do that. It also says something about who we are as a Commonwealth, that we value equality and we’re willing to stand behind that promise.”
Question: A lot of the Republicans’ arguments – I hate to even bring them up, they seem so ridiculous to me – that all these horrors will ensue…boys and girls will have to share locker rooms, they keep bringing up abortion…Do you think any of those have any validity? They make these arguments all the time, even if they make no sense. Do they have any validity?
Answer: “No, they all sound like nonsense to me…And good things would happen [if we ratify the ERA], like making sure that everyone is treated equally…We have some federal laws that help, but it would be best if we could get could get it into the constitution.”
Question: On hate crimes, you have a package of legislation, right?
Answer: “So we’ve got a few proposals that we’ve put out. First of all we would modernize the definition of hate crimes to include gender, sexual orientation, gender identity and disability. We have a proposal that would allow the Attorney General’s Office to prosecute hate crimes, which one of the harms about hate crime is it’s designed to strike fear into an entire community which could cross jurisdictional boundaries and…could be felt by all Virginians. So I think having the Attorney General’s Office have the ability to prosecute it would send a real strong message…that their state stands by them. We’ve got a proposal that would allow localities to prohibit firearms in permitted events. We’ve got a proposal that would prohibit the kind of white supremacist, heavily armed militias that were roving Charlottesville…That shouldn’t happen in Charlottesville or any any community in Virginia…Some of the things I remember most about our conversations [around the state] are how [hate crimes have] a toxic effect all across our society that even goes down to our kids in schools, people saying that they are starting to look over their shoulder now…This is happening here in Virginia. We need to reassure people that we’re here to protect them and we also need some some laws and tools that will help us accomplish that.”
Question: Do you think that there’s a chance that this package will maybe make it through this time, or is this a reason to take back the legislature?
Answer: “My mother taught me to always be optimistic, so I’m gonna remain optimistic that the data about the rise in hate crimes in Virginia that parallels what we’re seeing nationally compels legislators who up until now maybe haven’t taken it seriously for them to start looking seriously at some of this. I would have thought what happened in Charlottesville a year ago in August would have done it, but if not, you know certainly the data should help show that. The State Police reported a 64% increase in hate crimes since 2013; over 200 hate crimes in Virginia last year and every category of bias showed an increase. So I’m hopeful that with some of them horrific massacres that we’ve seen, hate-related, it’s time to really start taking action on this. There’s a link to gun violence as well. If it’s blocked again, I think we should be putting it out to the voters, whether it is hate crimes legislation or reasonable gun safety measures. We need to put that out there so voters can see who is really standing up in fighting crime and who’s not – and there’s a clear choice.”
Question: Getting back to Dominion, should a public service corporation, really any corporation that has issues and interests before the legislature, should they be able to lobby the state, should they be able to donate money to the very people who are regulating them? I’m focusing a lot on Dominion because they’re a very powerful player in Virginia…they seem to be able to usually get what they want. Maybe that’s just purely coincidental that they also give hundreds of thousands or millions over that time period actually to Virginia candidates and incumbents, but…
Answer: “All of the decisions and the actions I’ve taken have been based on what I thought was best for Virginians and what the law required, and my record backs that up. At the same time, I’ve seen the public’s trust in government at a real low point. And last year I talked to a lot of Virginians on the campaign trail, a lot of candidates including this crop of 15 Democrats have been added to the House, about this lack of public trust. So I’ve decided after the election last year that I would not accept contributions from state-regulated monopolies and that’s going to be my policy going forward…That’s something that I think I could do to help restore the public’s trust.”
Question: You accepted previously, but you’re saying going forward you’re not?
Answer: “Starting with the last election, after having heard from so many constituents, so many Virginians about what a lack of trust they have in government generally, that perceptions are important and I’ve just decided that at that point going forward I’m not going to accept contributions from state-regulated monopolies or their registered lobbyists or key executives. And that may be some breaking news that you want to put on your blog.”
Question: This gets to broader ethics reform in Virginia and what is allowed in his state…
Answer: “I think campaign finance reform is an issue we ought to look at. I have a lot of thoughts on that. I think campaigns and elections cost way too much…The idea of limits has some real appeal, but what I’ve also seen is in those states and nationally where you set limits, it seems like the money still finds its way in. It’s just that much harder to get the kind of transparency that you get. So I like the transparency the Virginia has and that you know any contribution over $100 is reported…so if there were a way to have the limits and the transparency. And then the other issue is if the limits are set too strictly, like Colorado has a really low limit, and what I’ve seen is that kind of favors independently wealthy candidates, because they can self funds. I think there are a lot of issues that need to be on the table for a conversation and about what’s gonna be best for Virginia going forward.”
Question: I’ve always kind of been curious, when you took over that Attorney General’s office from Cuccinelli, because he was such a complete disaster, what was that office like? Was it a disaster or disaster or was it in good shape?
Answer: “Well a lot of the people who were there are good lawyers who believe in serving the public. We brought in a new executive leadership team and I am really proud about who we brought in. They’re very talented and with great ideas and my management style, if I have one, is to try to bring in the very best people I can and give them the tools and empower them to go out…and we’ve done that. There were a lot of things that we have done to modernize the office; there was no file management or document management system. Every law firm has one, but you know not the state’s law firm. So we have done that. We have upgraded our IT servers and privacy and protection. So we’ve really done a lot to modernize the office. But it’s really the the team that we’ve put in place at the management level that has really helped implement a lot of the things that you’ve seen our office do. And I’m constantly amazed at the breadth and scope of the work that our office does as a team.”