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Unassuming and brilliant lecturer at Harvard and State Attorney General James Tierney gives us some insight into the mysterious working of his position. What many don’t realize is the buck stops with them. After the discourse with constituents and other colleagues, he has to make the decision about issues that affect his state and potentially us all.
Policing Executive Power:
It is comforting to know that there is a small enclave of these men and women addressing the tough issues we face in the country like: immigration, consumer protection, education, and the ACA. They are meeting over coffee and tea, or even in the middle of the night, willing to take on what matters most, our basic rights under the constitution. They make sure that the power of the President is not overstepping the law.
If we have learned anything, James Tierney espoused, it is the need for us all to work together. In the current age of technology we can be isolated into micro groups. Even though he is absolutely a liberal, citizens are a mix of cultures and ideologies and he recognizes the importance to find common ground. Though his power and responsibilities are great, it is up to all of us to get involved. Watch this interesting and down to earth interview and learn more about the important issues at his website http://www.stateag.org/
– Welcome back to the Urban Monk, Dr. Pedram Shojai here with a special treat for you today. I have James Tierney, who’s a professor at Harvard, and he is the go-to guy for state’s Attorney General. He was, back in the ’90s, he was the State Attorney General of Maine, and there’s been so much happening in politics, even before this political climate, there was the political climate with Obama, where you know the state’s rights versus federal rights became a really big thing, and Texas really stood up to the Obama administration, and now you have California and all sorts of other things standing up to the Trump administration, and it’s really bringing back a lot of these conversations that were happening at the inception of the union of America. And there’s a lot I didn’t know about this, and there’s a lot I’m assuming we’re going to glean and gather from our conversation about what state’s rights are and what a state’s Attorney General can do. So welcome welcome to the show, I’m really honored to have you here.
– Great, happy to be here.
– So you’re kind of the hub for anyone who wants to be an Attorney General, really on the state level coming through. You’re parked up at Harvard, and these individuals come through to consult with you, to say hey, what is this, what do I do for my job?
– I wish it was that formal. I’m a lecturer at Harvard Law School, and have been for the last five or six years. I was at Columbia before that. But the AG is really a pretty small club, if you think about it, if you’ve got them all in the room, and you never do, you’ve only got 50, so you could probably fit them in your studio, you know? So it’s not that formalized. There are some formal organizations. There’s the National Association of Attorneys General, the Conference of Western Attorneys General, the Republican AGs Association, the Democratic AGs Association. I kinda float through all of these, and often lecture or speak or talk in a lot of phone calls, a lot of texts. That’s kind of what I do.
– And you’ve been across the board talking to guys on the red side and the blue side of the aisle, and so if you’re an AG, either way you gotta do your job right, so you need to figure out what that means.
– Yeah, but I’m a pretty blue guy, okay, I mean I always have been. I’ve been a democrat. But up until, frankly, November 9th, I didn’t do any formal work with the Democratic AGs Association. But I think the philosophical shift that President Trump is bringing to the country has pretty much forced me to return to my democratic roots. So I’m very fond of several Republican AGs, but most of the work I’m doing is with the Democratic AGs.
– Got it, you had to draw your sword and get back out on the battlefield here.
– I mean, you know, yeah. I mean, you know, what are you going to do. You know, Donald Trump’s President of the United States, I still can’t believe that. I know I’m in good company when I say that, like everybody. But the point is, that’s where we are. Not everybody, but you take my point. So I do work, I don’t want to have any illusions here that I’m some Alan Arbitrator working with everybody. I really am focusing on the Democratic AGs, and that’s where all the energy is now. The Republican AGs, you know, you get a lot of eye rolls from them, I mean they’re not thrilled with a lot of the things the President’s doing, but I think they’re in a pretty difficult position to be able to do much about it.
– Yeah, exactly, once you pull the banner and you pledge allegiance to one of these colors, then it’s just toeing party line and all kinds of stuff, no?
– It really didn’t used to be that way, you know. When the states lined up to sue Microsoft, for example, it was about half Democrat and half Republicans. I mean this partisanship that has come in as a direct result of Citizens United, there’s no question about it. Millions and millions of dollars now flow into state Attorneys General races, and they don’t come without, not anything illegal strings attached, but you know, your friends give you money, your enemies try to beat you, so there is a coarsening of the environment even among the Attorneys General. It’s nowhere near as bad as the Congress or the Senate, there’s still a lot of personal friendships across party lines, but it is no question much harder than it was 10 years ago.
– So why is it a big deal? What can a state Attorney General do to exercise power for the state when federal laws, federal edicts are starting to encroach, come over, and tell us what to do?
– Fabulous question. I gotta put my professor’s hat on.
– Putting you to work, yeah!
– Well, I mean I want to do it right. Here’s what would happen. When our country was founded, it obviously was founded based on the colonial experience, and even there they had Attorneys General who were separate from the crown. You know, the colonial governor in Virginia didn’t get to appoint the Attorney General, the Attorney General was appointed directly by other places. And the United States, when we became a government, we we rejected the federal model. In our first Constitution, in 1787, the President appoints and can remove the federal US Attorney, I mean the United States Attorney, and that’s not true of the states. The states, 43 of them are elected, and all but two, Alaska and Wyoming, are independent from the governor. So they’re meant to be independent voices, so that they can provide a check on executive power. Now most of the time, the check they show on executive power is within their state, against their own governor. Now if the governor or the legislature goes too far, gets over their skis, then the Attorney General pushes back. It’s not like the normal attorney-client relationship. But in our federal system, the state AGs are a natural force to say whoa, wait a minute, wait a minute, wait a minute, federal government you’re breaking the Constitution, somebody has to stand up and say no, and that is what Attorneys General do. You know, they did it one way during the Obama years, they’re doing it another way now during the Trump years, but that is a core function of what an Attorney General does to enforce the separation of powers to enforce the boundaries of federalism.
– We recently just had this issue with the immigration ban, and then there has been legislation that has shown up and kind of blocked it. At this point, you know, who knows what the hell is happening, it’s all fluid. How much did the Attorney General, behind the scenes, get involved when there was this kind of overreach by say the federal, the executive branch?
– Okay, great, there’s a little history here that the Republican Attorneys General during the Obama years believed that President Obama and the Congress overstepped their constitutional responsibilities, and so they brought a lot of lawsuits. But two of the best known, one was to block the Affordable Care Act, or Obamacare, went to the US Supreme Court a couple of times, and the other was to block some of the President’s immigration orders, executive orders, which is more relevant to what we’re dealing here. So these are the Republican AGs getting together and saying, “President Obama, you’ve gone too far.” And they had some luck, they almost stopped the Affordable Care Act, and they succeeded in stopping the President’s executive order on immigration. So that’s the history. So everybody wakes up, it’s November 9th, we have a new President, and so the Democratic AGs go wait a minute, this is a guy who is pretty self-confident, he’s going to think he’s going to do a lot of things, and he may in doing that roll over the states, may try to roll over the Constitution. So by the time the President was sworn in, the Democratic AGs had already met and talked and were strategizing and were watching very very closely. So the immigration executive order fits into that context that, I hate to be too preachy and lectury here, but that’s the truth of it. It happened to be immigration, but it could have been any number of other issues.
– But then there was a vehicle that the Republicans had really kind of incubated during the Obama years, that then the Democratic AGs said hey wait a minute, so now it’s our turn, let’s fight fire with fire.
– Sort of, I mean if you really want to get picky about it, it actually goes back to the Bush years, when the Democratic AGs sued the Environmental Protection Agency. The name of the case was Massachusetts versus EPA, which established the rights of state Attorneys General to do this. President Obama came in, he loved state Attorneys General, they loved him, and so it all went away for eight years on the Democratic side, but it came back on the Republican side, as I mentioned earlier. And now it’s back with the Democratic side. So it’s been kicked around these 20, 25 years.
– Let’s talk about the essence of state’s rights and what that means. Because this union came together, and it’s called the United States of America, and each of these states are kind of their own entities. And if you’re Texas, you think you’re your own country, right. Like they have identities, they have their own laws, they have their own state’s constitutions. So let’s talk about this historically a little bit.
– [James] Sure.
– When you were running the AG office in Maine, Maine has its own thing, you know Maine’s been there for a long time, and so there are certain things Maine wants for Maine, and the feds would be overreaching, right? So at what point do you step in, when there’s an egregious breach of some sort of federal overreach? Or when there’s some sort of state agenda that is being challenged? Like at what point do you get tagged in for this stuff?
– First of all, there’s more happening on any given day than any Attorney General and his or her staff, no matter how talented, can possibly handle. So at the very beginning, you’re picking and choosing. The second thing you do is, you don’t want to fight. If you’re the Attorney General, you don’t want to go pick a fight with the federal government, why do you want to do that, right? You’ve got other things to do, you’ve got crime to prosecute, state institutions to run, consumers to protect, who wants to go pick a fight, right? So it’s not like you line up and say I can’t wait. So instead you sit and you wait, and you look at something that really impacts directly on your state, and then you sit there and say, “Okay, am I alone? Is it just me?” Chances are that I’m not. Chances are, given the way our country works, the way the economy is integrated, you’re going say, “Wait a minute, let me check with some of the other AGs.” It’s kind of a club. See if anybody’s similarly situated, because these cases base on the federal Constitution, it’s rare is it really based on some unique aspect of the Maine Constitution. It’s usually based on our federal Constitution, which means all of the states are going to be in the same boat. So you start to send out your emails and your texts, Skypes, and find out what your colleagues think, usually on the staff level to being with, and say, “Hey, are you interested in this one? Is this something that impacts you, or is it just us?” They say, “Ah, we’re going to run with this one, we won’t run with that. That one’s too small, this one’s really big, this one’s really important.” And then pretty soon you start to coalesce around particular issues. These are not just Constitutional issues, they’ll also involve, for example, you know, any major consumer case or anti-trust case, or something like that, same sort of practice occurs. So the AGs are really connected. I have a little 20 minute TED talk on my website, stateag.org, AG 101, and if you go to that I kind of drone on for about 15-20 minutes and try to lay out how the offices are structured, and how they relate to each other or not.
– What’s coming? So you know, something comes up, and you’re like okay, this pisses me off, who else would this piss off? Let me text my friends. It’s a small club, right? And then you say okay we’re galvanizing, we’ve got a base, we’ve nine states.
– Well it’s a little more formal than that, but that’s the truth of it, I’m telling you what happens. I could say, “Oh no, it’s a great constitutional scholars gather together in a library with lots of books.” But that ain’t how it works, right? You pick up your phone, and you go, “Hey, you know, I’m from Pennsylvania, yeah how are you, I’m good. Did you see this thing that Trump just did?” It’s more like, I gotta tell you, it is like that. And there are real constitutional scholars in these AG offices, I mean there’s some fabulous fabulous attorneys. They aren’t like Congressmen, it’s not like they’re just voting, hey I don’t like that, right? That’s not what an Attorney General does. Attorney General, the boss, the man or the woman who’s running the show, they have the instincts, they’re the elected officials, but they put together really talented staffs who have their own expertise. You say, “I’m going to run this by my environmental people”, or “I’m going to run this by my consumer people, see what they think. They’ve been here for 20 years, I’ve only been AG for 20 minutes.” And so they work and they talk and certain issues emerge, and then patterns emerge. And naturally, just like in life, you learn to trust some peoples’ judgment, as opposed to other people. So you know, I’m going to be more apt to follow the AG of this state than I am the AG of that state.
– Yup, yup, makes perfect sense. This is people, right? When we live in an era, if the President is tweeting at three in the morning, you know.
– You know, one of the things I’m shocked at, you know when I bring an Attorney General into my class once a semester, and I realize that my students are for the first time actually sitting in a room with an elected official asking them whatever they want. Now I’ve lived my whole life this way, plus I’m in a small state, you know you want to go visit the Governor of Maine, you call him up and he says come on up, right, it’s a small state. But when you’re dealing with students from around the country, that was shock to me, because it’s so common for me to bump into an AG and say, “Hey did you get those new hearing aids you were talking about?” Right, I mean that’s kind of what I do, whereas my students are like wow. And that’s when I realized, because so much is done on the computer, we’re doing it on TV, and we’re only getting images, and this is both parties, right? So that’s the kind of experience that my students have. So it is people, these are real people, and they’re doing the best they can with the information they have, and oftentimes the information isn’t complete, but you have to make a decision, right? You can’t wait till you get 99 percent sure, you may have to go when you’re 60 percent sure, see what happens.
– So you’ve got students at Harvard Law School that are kind of gaga over having access, for the first time, to an elected official.
– Yeah, I wouldn’t use that word, they’re excited.
– Sure, they’re excited. But your average person, okay, so if I’m at Harvard Law and I understand the system a little bit more than most, I’m still getting a little starstruck when I have a high level official that’s elected in there. What does your average person feel like then? I just feel like the guy on the street feels like he has no access to an elected official.
– No, I get it, and in many cases they’re right. This comes back again to Citizens United, you know there’s only so many hours in the day, right? So if you’re a citizen of California, Pennsylvania, Ohio, your Attorney General, just like your Senator or your Governor, spends so much time raising money, and then trying to do their job, that it’s a little bit hard to, you know, take your kids and go to the movies and bump into you in the line and say, you know, “What’d you think of La La Land?” You know, you’re not going to run into them in the normal course of events, increasingly. And that’s obviously a terrible, was not thought about in the Constitution, if you read the memoirs or the histories of any of our founding fathers, and they were pretty much all men. You found they were pretty accessible. John Quincy Adams, the President of the United States, used to go for walks by himself up and down the streets of Washington, go swimming in the Potomac every morning. You wanted to go see the President, you’d say hey. But, you know, that doesn’t happen anymore.
– Yeah, well the scale at which this thing blew up and became hundreds of millions of people, and yeah, the world’s a different place.
– Now we’re talking about President Trump. Now President Trump clearly does not understand that his words have meaning. I mean, I really believe that. He just gets up and talks, says wildly inconsistent things. I mean no one, no matter, even if you love the guy, can actually think that he’s telling you stuff that’s true in press conferences, “Oh yeah, somebody gave me that” or “I saw it on TV”. So you get that kind of stuff, this deluge of words is really off-putting to people who are trying, in both parties, who are trying to make serious government policy. So we’ve got a big problem.
– Yeah okay, so let’s talk about that. You know, this guy comes in, riding in, and I’ll be frank about my personal bias. You know, I sit right in between red and blue on most issues and this kind of stuff. I’ve never liked Donald Trump from the Apprentice days, I just thought he was a narcissistic asshole. So you know, for me, it’s like I don’t care, this isn’t a red or blue thing, it’s just this guy is an egomaniac, and that’s a challenge, right? So now, this guys comes in saying, “I want to drain the swamp.” And you’re a guy that’s sat in an elected position, you’ve been serving, you’ve been working your ass off trying to serve your country and help uphold the Constitution and all these types of things. How do you work with a person like that, and how are your colleagues looking to work with a person like that, who now is the Commander in Chief?
– Well, first of all, the contrast is stunning, especially from his immediate predecessor. And again, this is without regard to political party. I mean, you know, President Obama taught Constitutional law at the University of Chicago Law School. I mean, we’re talking the President of the Harvard Law Review, whether you like him or not, we’re talking about one smart guy, right? So if you’re a lawyer and you’re talking Constitutional principles, he’s going say, “Oh, I want a memo on that, I really need to understand it. Oh, that’s interesting and make sure you’re giving me some attached articles, and maybe a Law Review that I can really study”, because that was President Obama. Whether you liked him or not, that was his way of working, right? He read constantly, you know, he zipped through, but he read fiction for heaven’s sake. So now we’re completely turned around, and we’ve got someone who clearly doesn’t read anything.
– He’s too busy writing.
– I really don’t know what he does with his time, except pretty clearly, watch television. So how do you even begin to communicate with that? And I’m not talking about the Democratic AGs here, I’m talking about his Chief of Staff, right? I’m talking about how do we get him to slow down, and say, “Look, this is an important, you’re going to have an executive order, you want to keep people out, we have Constitutional principles, and we have to obey them”, and all that kind of stuff. He just pops this thing out, then he sends some little pre-pubescent guy, this Miller guy gets on television and says, “Oh, the Constitution doesn’t apply, nobody can restrict the President of the United States! The judges can’t tell the President of the United States what to do!” So now you sit and you go whoa, wait a minute now. And this includes an Attorney General, any Attorney General, Republican or Democrat, they’re saying, “Wait a minute, what did he say? He said that the President’s actions are not reviewable by the courts?” So I mean, even Mitch McConnell, the majority leader of the Senate gets up and says, “No, that’s not true. You know, we don’t live in a country where you can just do anything you want.” So right now, you know, we’re sitting here on February 17th, I’m taping this, 2017, I know when you say these things they’re out the for eternity, so that’s why I put the date on there. We just don’t know what’s going to happen. So the Attorneys General, and particularly the Democratic Attorneys General there, are watching for the really un-Constitutional abuses. They know that he won and the Democrats lost, they get that, they know that President Trump and his administration get to do a lot of things the Democratic AGs wouldn’t do, but the Democratic AGs aren’t going to go out and challenge all of that. They say, “He won, we lost, maybe we’ll win next time.” That’s democracy, that’s our system. But when he goes over the edge, when he violates our Constitution, when he takes away people’s due process, then we still are a country of laws, and the President is not above the law. It’s pretty simple.
– And that’s really the governing principle of everything that we agree on here. You know, if we’re on a two-lane highway, I’m agreeing to stay on my side of that left lane, or we’re going to crash, and it’s going to be a bad day, right?
– It’s good for everybody.
– It’s good for everyone to stay in your lane, kind of thing. So when we’re talking about checks and balances, we have the branches. And again, I’m not a law guy, but you know, there’s Congress, there’s the Judiciary, and there’s the Executive Branch, and they’re there as a system of checks and balances, so that’s one.
– That’s within the federal government, and then we have states out there as kind of being a check on the whole federal government. Because even if the whole federal government agrees, the states have certain rights under our Constitution to say, “Well now, wait a minute, I know you want to do that, federal government, but we’re not going to let you do it.”
– And how effectively can they galvanize their base of other states, or stand on their own, and win that in the Supreme Court? Like where does that happen?
– Well, you try not to go to court. You know what we do? We like to cover the fight, right? Reporters like to cover the fight. We like to see somebody with a bloody nose, and we all run to the television set or the computer screen, whatever it is, right? So we oftentimes don’t get on top of these issues until there’s blood on the floor. What AGs try to do, what I try to do, which I hope every citizen tries to do is say, “No, let’s not get to that point, let’s find areas where there’s mutual agreement.” Everyone’s against terrorism, nobody wants to have violence in our country. You know, what are the actual numbers? What’s the data? Where are the most likely perpetrators? How do we do good policing? I mean this is sophisticated, and it’s hard work. That’s where we want to be. But when it all falls apart, if someone tries to short circuit that system, which I think President Trump is doing. He’s a data-free guy, right? He’s not up there late at night scouring the reports trying to find out what’s happening, he’s watching television. So what happens here is that he’s not paying attention to the details, he’s unsure that his own staff is even giving him, unsure his staff is saying, you know, “Mr. President, we do not have the highest murder rate in the history of the United States, quite the contrary.” And he just doesn’t pay any attention that them. So we’ve got a problem, and when it’s just talk, we just let him talk, right? You let him talk. But when he’s actually starting to try to implement programs without going through processes, such as with an executive order, he doesn’t go to the Congress, he doesn’t even talk to the Department of Justice, he doesn’t talk to the Department of the State, he just goes out there and does this stuff, then we have a Constitution, somebody’s got to step up, and it looks like it’s the Attorneys General. I mean, the Democratic Attorneys General, the thin blue line here. They’re not deep in numbers, but they’ve got a lot of talent, and they have a lot of jurisdiction.
– What’s the split on the 50 states, between blue and red on the AGs?
– Well the Republicans have the edge now, I think maybe they have 28, 29, something like that, depends on how you count it. But you know, I get a lot of those questions, and it’s kind of really irrelevant, because you know if 50 states are going to sue you, you have to pay attention to them, even if they’re all Democrat or all Republican.
– [Pedram] Got it.
– The numbers aren’t that important. And the big state of Texas is very conservative Republican, but California, Illinois, New York, Pennsylvania, they’re all Democrats.
– So what happens with the big state of Texas when Trump makes some sort of far-reaching edict that then, despite color affiliations, starts to impede on their state’s rights? At what point does this end up becoming a Texas fight as well?
– Well we were talking earlier about how this is really about people? I mean, the Attorney General of Texas gets to decide, okay? One of the reason the Attorneys General are different, is that they actually decide, okay? You know former Attorney General, former Secretary of Interior, former US Senator Ken Salazar from Colorado was once asked, when he was a US Senator, they said, “Well, you’re a Senator now, what do you miss about being Attorney General?” And he said, “The power!” You’re an Attorney General, you get to decide things! You’re a Senator, you say, “Well, you know, do I have the votes? 52, 48? 53, 47?” That’s the way, and that’s legislature. I used to be a legislator, that’s what legislators do. But when you’re the Attorney General, man, you take the file home and you read it. You know, two thirds of your staff wants you to do one thing, another third of your staff wants you to do something else, you’ve got to decide.
– But the buck stops with you.
– You just gotta do it, okay? Even governors, in some situations, they have that power, obviously, in commutations of the Senates. But in most cases, Governors have to work with legislators and budgets in their administration. Attorney General is oftentimes out there by himself or herself, and that’s one of the reasons why, traditionally, there’s been a lot of bipartisan respect across geographic and party lines, because there is a lot of affection, because they share this decision-making duty. If you wander in, even now, in this measure of tension, if you walk into a meeting of Attorneys General, you couldn’t tell who are the Republicans and Democrats. They’d be chatting, they’d be talking about their kids. I mean, you don’t see that kind of partisanship. And you’d also get the sense that these were people who really want to do stuff. It’s not like a bunch Lieutenant Governors, okay? I mean these people really have responsibilities, and you can see it in their faces, and in the way they behave. I’m a huge fan of the institution of Attorney General and the men and women who fill it. I was honored to do it, but I’ve watched a lot of wonderful people come through. So it makes a difference.
– So I’d like to dig into this, and we’re getting a little into the mud here, but I gotta know. So you know, we had a mayor in last week talking about, you know, just kinda how shitty it is something getting into the politics of the city, and how many special interests, and how money runs the show and all that.
– [James] Yeah, it’s tough being a mayor.
– Yeah, it’s tough being a mayor, and allegedly
– But you get to go to fires, right? Don’t you get to like, ride around in the fire truck?
– Yeah, well you get to cut ribbons, there’s perks.
– That’s got to be fun, and I always thought the best thing about being governor would be getting in a helicopter and looking at the floods. You know, those guys love that. You ever notice, they’ll put on their jacket, and they’ll say, “What was the flood like?” And they’d say, “Man, it was a really bad flood.” That was the fun part, other than that it’s a pretty tough job.
– It’s a lot of work.
– Yeah, it’s a lot of work.
– So my question, you were talking about a flood, you know, we’re talking about a swamp, a big big swamp, that’s being called out right now. And you know, for good or for bad, people have lost faith in the political process, right? There’s a lot of money, there’s a lot of lobbyists, you know, there’s just a lot of bullshit in this space, and people are in some ways really justified in being angry. In some ways I think it may be a little hyperbolic, what’s being said. So in your opinion, right, what is working and what is broken? I know it’s a big question.
– Well, just in
– Or in my little AG corner?
– No, everywhere, because in your AG corner I think it’s pretty well
– I think I do have an answer for this. I think after World War Two, we really felt that we were a connected country. We were about 180 million people. We had lots of different ethnic groups, lots of different languages, but we felt connected, we’d gone through this great experience. And we didn’t have a lot of international competition, what we sold, what we made, we sold in the country, and so you could give more money to workers and pass the prices on in costs. Well now we’re not 180 million, now we’re 300 and plus, 320 million people, and we speak all these different languages, and every single item that we purchase has been made, oftentimes in many different countries, different component parts. And the technology which allows us to talk today also drives us apart. It allows us to just talk to people we agree with. So we’re not members of unions, we don’t go to church very much, we don’t know our neighbors, and so as a result, when you don’t know somebody you can be pretty mean to them. You can be pretty harsh. You use stereotypes to get through the day, because you have no other way to understand what that person might be like. So when you’re operating with stereotypes, and people you don’t know, that means you can be mean, and so that allows people, and we’ve always had people like Donald Trump, who are willing to come in and play the nationalist card, make you afraid, make you afraid! Afraid is a much stronger passion than hope. If you’re afraid, you’re locking your door, and you’re afraid to go out nights, or you’re afraid to go out days. And so, you look with suspicion around you and say, “Well I guess I’ll work home today.” And you can now, because we have the technology. So it’s like, with that sort of function, it exposes not just the United States but the whole world to the possibility of this sort of thing, these kinds of vulnerabilities. So you have Brexit, you know, England doesn’t trust anybody, you have Le Pen in France, you have the rise of real nationalism in places like Hungary and Poland. It’s a dangerous time, and the United States fell prey to this. And with Donald Trump running around saying Brexit’s good, I’m not sure he can spell Brexit, not sure he understands it, it’s a very complicated issue. He’s running around telling the world Brexit is good, and so England should pull out of that European Union, and he has no idea what he’s talking about. But he says it, and so that voice of nationalism and negativity and attacks makes people afraid, and so you clench. When I’m afraid, I clench, right, you know you get body language, you freeze up, and that’s not a good way to run a country, it’s not a good way to run a government. Sorry for the little, you know, oration here, but if you get a mayor on, he’s dealing with that every day. And so people are less willing to make sacrifices for someone else if you don’t know them. If I know somebody, I’ll pay a little more taxes so those kids can have better school. But if you don’t have any kids, or you don’t know anybody whose kids are in school, you know, you pulled your kids out of the school, or something, then you’re going to be less tolerant, there are going to be less taxes, the schools get worse, people get angrier, there you go. We’re in trouble.
– How much of this is pendulum swing. I mean we’ve seen this happen in American history, we’ve seen this happen in world history a lot. And sometimes it looks like Nazism, right? Other times we’ve had isolationist eras in America. Where do you think this one is, is this one particularly loud and dangerous?
– Well there are a couple of things that are different with this one. I mean, let’s hope, right? One is the technology, it does have the capacity to drive us apart, but it clearly has the capacity to bring us together. And so, if people can start speaking in terms of broad themes, themes that sort of bring us together, this presidential campaign, Secretary Clinton’s campaign was very often saying, “Donald Trump’s a bad man, don’t vote for him.” Donald Trump’s campaign was, “Everybody’s out to get us. Don’t trust anything you read, anywhere.” It was all very negative. So the idea of finding people who can, men and women of either party, who can kind of broach that is pretty high priority. Another thing we haven’t had before is the Supreme Court decision that says you can give political money, unlimited political money. So we have individuals who, you know, are just pouring money, and we have hedge funds that have no feeling of responsibility just pouring money in, and there’s some push back on that. We’re seeing some very wealthy people saying we have to do better and try to bring people together. But you know, hey I’m an optimist, if I wasn’t an optimist we wouldn’t be having this phone call, right? I’d be living in a cabin up in Maine and, you know, going ice fishing or something. So I’m an optimist, you know, I love my family, and I hang out with my friends I went to high school with, and I’m not sitting around preaching to people.
– Yeah, well that’s really it. You’re either going to roll over and die or you’re going to defend the world that you love so much, and there’s so much. And I would say people on both sides of the political spectrum, I mean look, they want a better life. The commonalities there are great, it’s just this polarizing discourse which is very challenging.
– Let give an example, we used to have people, when I was a young legislator, and I was knocking on doors 40 years ago, people’d say, “Oh you know, so and so’s cheating on welfare.” And I’d say, “Great, let’s turn ’em in.” And they’d go, “Well no, you know, so and so, you know, her husband was no good, I knew him, I went to high school with him, and he left, and so yeah she’s cheating sort of, but you know, if we turn her in she’s not be getting money for the kids.” In other words, there was a sense, even when somebody did something wrong, and cheating on welfare is wrong, there was sense of connectedness. Well today, you don’t know your neighbor. You didn’t go to high school with, you know, her ex-husband, you don’t know any of these things, and so it’s easier to be harsh and to be negative and think that when someone else is doing well, they’re taking it away from you, which isn’t true. We all do better when everybody is sharing. But in the individual cases you have oh, they’re getting that and I’m not, they must’ve gotten some secret deal. Then we’re in trouble. And of course, if you put a brown face on it or a black face on it or an Asian face on it, you know, right now, and you play the immigrant card, and man, then we’re in trouble, you objectify people who don’t look like you, you can turn them into the other, and then that opens up the avenue for this kind of xenophobia and anger and the punishing rhetoric which comes at you day after day after day, and in this case from the President of the United States. So we got a problem here, but we’re working on it. I work with great people every day who are working on it.
– So you have a National Association of Attorneys General’s meeting coming in a few days.
– [James] Yeah.
– What is going to be the big talk at this meeting? Is there an agenda around all this?
– Oh, there’s always an agenda, there’s like 20 agendas, right? So NAG is a wonderful organization, it’s got a fabulous staff, and they have a great staff set, they’re talking about all kinds of issues that some appear on their face to be conservative, some appear on their face to be liberal, and there are some wonderful speakers, so there’s that agenda. Then there’s the agenda kind of in the room, and then there’s the agenda out in the hallway, that’s where I am. Where people are coming up and saying, “Jim, have you ever heard of this one before? And what about that?” You know, that’s kind of where I do my work. There used to be, when I was a kid, AG, a long time ago, they’d be, you know, late night meetings and alcohol and stuff, that’s all gone now. These people are professionals. I was at a NAG meeting, I don’t know, in December, and I said, “Look, we’ve got to get together and talk about something” at 11 o’clock and everybody said “Oh that’s too late, no I’m not gonna do that.” So I had to force them to go, and they said, “Oh, alright.” So I mean, I don’t want people watching this to think there’s a lot of parties and lobbyists and cash flowing around, that just doesn’t doesn’t happen, these are hard-working people. So I don’t know if I answered your question. So there’s like three different agendas. So immigration going to be discussed? Of course! Is the Affordable Care Act going to be discussed? Of course! Is education going to be discussed? Of course! Is criminal justice reform going to be discussed? Of course! Is it going to be on the formal agenda? I dunno!
– Right, right, but you’re going to talk about what’s up and trending.
– This is a club, these are people, they’re going to talk about what’s right in front of them, and who knows what the President’s going to do tomorrow? Who knows what he did while we were having this conversation? That could be the priority subject, I dunno!
– Yeah, yeah fair enough.
– His Press Secretary doesn’t know what he’s going to do. His Vice President has been cut out of the loop, nobody knows. So we don’t know where we’re going to be.
– Yeah, what an interesting time. Is there a threat of encroachment? You said, okay, there’s no parties, there’s no lobbyists at this party yet, and now as we’re starting to understand these systems of checks and balances as they kind of trickle downstream into state’s rights and places where people can kind of have oppositional bases. You know, you’re saying there’s more money starting to flow into this thing, what’s the threat of dirty lobby money coming into your AG world?
– Frankly, the Supreme Court’s legalized everything, I don’t know why anybody would bother with dirty money. If you do anything, it’s all legal, right? You can contribute anonymously and why, no there’s not dirty money. People aren’t, at least in my world, the Attorneys General are not sitting around making money themselves, that doesn’t happen, I just don’t see that.
– But there’s money going into elections now.
– Oh, there’s a lot of money going into elections. So it’s certainly not lobby free. I do think both sides have some challenges. I’d like to use this opportunity to throw out a challenge to my side, the left side, if you will, I’m a pretty liberal guy, personally. They are not doing a good job prioritizing anything. They’ll say, “Oh, I want to talk to the AG, they should sue Trump over this and that, and this, and that.” And I go, well wait a minute, what do you think’s the most important? And they look at each other and they say, “No, this and that, and this.” And I say, “Wait a minute, that’s not going to work. First of all, it shouldn’t work. If you are some advocacy group, for human services or justice reform or ACLU, whatever you are, if you can’t establish your own priorities, how can you expect the Attorney General to make priorities. So I’m pretty tough on them. You know, it doesn’t make me popular, but I’m not running for anything. So I say, “Look, you guys have got to go and make some decisions. What is the really big one that you want the AGs to do?” And they don’t want to hear that, because that means they have to make the tough decisions. I say, “Well the AGs are going to have to make the tough decisions, and you better help them.” And that’s bad, when everybody wants everything, and there’s way way way too much of that, no one willing to sacrifice. Environmentalists say we’re more important, and the justice reform people say we’re more important, and human services say we’re more important. And it all costs money, right? So where’s the money going to come from, right? So you’ve got to force prioritization, and the left is very very bad at this. The right’s probably pretty bad at it, too, but the left is particularly bad at it.
– So if I have an AG, how often are these elected, is it a state-based thing? Or is it like every two years?
– AGs are elected every four years, with the exception I think of Vermont still has a two year term. They’re every four year terms.
– Okay, and then they run simultaneously with presidential elections?
– It depends on the state, depends on the state. This last year we had elections in Indiana, Missouri, but we didn’t have them in Ohio or Illinois, so it depends. Some are in cycle, some are out of cycle with the President.
– So it seems like a pretty important position.
– It sure is, I mean people are waking up, right? The fundraisers woke up, you know, a bunch of us got together to sue the tobacco industry about 20 years ago, something I worked very hard on, and that really woke a lot of people to say, “Whoa, these guys take on the tobacco industry, then they may take on somebody else.” So the business community and major donors have figured out that AGs are important a long time ago. But the rest of the world is just waking up. If you try to go to, and you know I just love Harvard Law School, they have a lot of faith in me, I’m a lecturer in law, I run a clinic, I have like a hundred students on my wait list, it’s a great program, but there are very very few law schools, maybe three or four, who run a course on Attorneys General, because they’re all focused on the federal government, because the law professors all went to, you know, work for federal judges and so they’re just totally focused on the federal government. So it’s important for law schools and for bar associations and, you know, for legal periodicals to wake up and say, “Wait wait wait wait wait wait, you know, we’ve got to look at these AGs, they’ve been around for 200 years, they’re not going to go away. You know, we’ve got to do something about that.” And so stateag.org, my website, also includes my syllabus, which I put up, I want the whole world to read it, no secrets. I teach very liberal students and very conservative students every semester, I call it down the middle, I don’t hide my own politics, but I call it down the middle. And I want people to come to my website and say, “Look, oh, that’s interesting, that’s how the states deal with outside council, that’s how the states deal with governments, that’s how the states do civil rights, that’s how the states appear before the Supreme Court.” This is something I want people to read about. I hope other professors get in and teach the same thing, the more the better.
– One of the precepts of the founding fathers, one of the things that the really kind of established this democracy on was an enlightened citizenry. And so people need to know what’s up, they need to know how the process works, how politics works so that they can be a part of it. There’s this one, and we’re running out of time, but there’s one more question that, you know, keeps coming up. I’m in California, right, so we’re famously blue, and you know it’s a liberal state, and so you know people are so pissed off about the federal election and everything that there’s been serious talk kind of floating around about saying secession is an option. And whether or not it’s an actual reality that’s even conceivable, how possible is something like that? I mean, if a state gets pissed off enough, can it say, “Bye bye, I’m packing”?
– I think we had something called the Civil War that kind of resolved that issue. Um, you can’t just like, back up and leave, this is the United States of America, we don’t want people to go, we don’t want people to go. We gotta figure this out, you know? We gotta get past the foolishness, and there’s a lot of foolishness coming out of the President’s mouth, you know. “Three million phony voters came into here!” All this ridiculous stuff. We have to get past it. You made the point, we have to be enlightened. Democracies work, it doesn’t come to us easy. You know, every generation’s gotta go out there and win this fight again. And I’m a baby boomer, right, but wow, we’ve gotta have every generation, people young and old have got to say this is hard work, we have to really study, we have prioritize, we have to think about this, we have to be good to each other, we have to be kind to each other, we have to care about each other if this country is going to make it. And no, some state trying to pull out of the union, it’s California today, under Barack Obama Texas wants to leave. That’s all, as my mother-in-law would say, it’s just foolishness. We gotta do this thing.
– Yeah, I appreciate that sentiment. I mean, the last thing we want is for this great nation to start coming apart over differences. So last question here. You had mentioned that after World War Two, we were unified as a people, and there was less of us, right? And we’d won the war, the economy was good, everything was good, and it seemed like there was narrative, whether you agree with or not, an over-arching narrative that was working about what it is to be an American. And now it seems like meaning and purpose are gone, the world’s gotten bigger, things have gotten more complicated. How much of this is kind of a lack of narrative? So you know, you could polarize the country and win an election, as we have just witnessed, right, and so that’s a narrative. It’s not necessarily one that serves the country as a whole. How much of our rebuilding needs to be kind of discovering a new narrative for America that works for everyone and is inclusive, and who the hell can make this type of thing?
– Before I get to that, let me just say, at the end of World War Two like I was talking about, there was a narrative, but it sure wasn’t good if you were an Afro-American, because you couldn’t vote. You know, it sure wasn’t good if you were a woman because you couldn’t get a job. It sure wasn’t good because you were smoking cigarettes that were killing you and your life expectancy was a lot shorter. So I don’t want to over-romanticize that time. But there was certainly a sense of connectedness that was, and God help you if you were a gay or lesbian or a transgender person, you know, even to the time when I was in high school. It was very very difficult. So I don’t want to romanticize. But your question is, I think, the answer, we are too used to in this country looking to individual saviors to come in. Alright, so the liberal Democrats say, “Elizabeth Warren, Bernie Sanders, they’re going come in and save us!” That’s not going to work! Those are pretty harsh voices, they’re pretty harsh voices. They’re pounding on people the same way Donald Trump pounds on people. But I think we have to, in our narrative, and this could be, I do believe, and California has always been the leader, I do believe that this narrative has to come out in a way that is technologically sound. Because we can instantly communicate with people, the whole country could be galvanized, and those voices have got to come through. I still turn to music, I still turn to the arts, I still turn to, not just elected officials, but real leaders. I think we are looking for people who are willing to take risks, and not just do the same things all the time, rise above their own narrow interests and say, “Look, this country is a great country, we have to get ourselves there.” But boy, this is a tough moment to find that theme. I do have some friends who are researching and thinking and trying to do this in an honest way, and I wish them godspeed. I think we have to work on collective things, I think we have to do things together. One of the things I love going back to Maine, I like to go to high school basketball games, you see everybody, turns out. Things like that are important, because you actually see people who you may not work with, and the more we do of that the better. And it’s not easy, but sometimes we have to get off our couches and just go out there and do it.
– And lord knows we’re on the couch way too often.
– Oh yeah, no question about that.
– James Tierney, Jim, you were great, I really appreciate your energy, you enthusiasm, and the fact that you’re still in the ring. You could be ice fishing.
– I could, I’ve gone ice fishing, and it’s an experience I’d just as soon take a pass on right now. But I take your point. Yeah, thank you very much, I enjoyed this, it’s been a great conversation. I think we hit some important themes. Hopefully people will jump in and tell me where I’m all wrong, and maybe I’m right a little. And it’s been great, thanks a lot.
– Thank you, and tell us the website one more time, for anyone who wants to
– You can learn more about Attorneys General than you ever want to know. Thanks an awful lot.
– Thank you. Listen, it’s your government, it’s by the people for the people only if you’re involved. So get on there, start learning where you can get more involved. And again, I agree very much with what he’s saying, don’t just wait for some hero to ride in and change everything for you. This is your world, this is your community, this is your society, so what are you doing to make the world a better place? How are you getting involved, and what’s your role this? This isn’t about someone fixing the world for you. You fix your life, you fix your universe, and it ripples out from there. So get involved, you can still go ice fishing on the side, but get involved, let me know what you’re going to do, and I’ll see you in the next show. Dr. Pedram Shojai, the Urban Monk.
– [James] Thanks so much.