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Baltimore Sun: Brian Frosh, 'grandstander'

07.24.2017

(July 13, 2017, 12:40 PM) Editorial

Our view: Maryland’s attorney general may infuriate Republican lawmakers but his lawsuits against federal authorities are legally justified — so far 

Some Republican lawmakers in Annapolis this week sent a letter of complaint to Attorney General Brian E. Frosh over the half-dozen lawsuits he’s filed against the Trump administration on behalf of Maryland residents so far this year. They called it “grandstanding” and insisted he desist immediately.

Now first, let’s relish the notion that anybody finds Mr. Frosh, who could more reasonably be called low-key and perhaps even “boring” and “wonkish,” to be a grandstander. Surely, they must have meant the state’s chief tax collector (assuming he’s returned from his latest beer promotion tour), who is known to pontificate on all types of matters — from the necessity of installing window air conditioning units in schools scheduled to be retrofitted with central air to which day every public school in Maryland should open — that have little or nothing to do with the job of being a comptroller. But no, the letter dated July 10 is clearly aimed at Mr. Frosh, a longtime Democratic lawmaker from Montgomery County elected to the statewide Attorney General’s Office in 2014.

How has he offended? Earlier this year, the General Assembly gave the attorney general the authority to take legal action against the federal government without approval from Gov. Larry Hogan, and he has not been shy about using it. Most recently, he filed litigation over the U.S. Department of Education’s abandonment of the “Borrower Defense Rule,” which is designed to protect students and taxpayers from unscrupulous practices of for-profit schools, and against the U.S. Environmental Protection Agency for its failure to protect the public from a toxic pesticide, chlorpyrifos, that can harm children’s neurological development. In each case, Maryland was joining multiple other states that filed similar lawsuits.
Maryland AG Frosh awarded expanded power to sue Trump administration

Maryland lawmakers on Wednesday empowered the attorney general to bypass the governor and sue the federal government at his own discretion.

But the one that has GOP members really steamed was Mr. Frosh’s choice last month to, along with the attorney general for the District of Columbia (and about 190-plus other plaintiffs), file a claim in federal court that President Donald Trump is in violation of the U.S. Constitution, in particular the “emoluments clause,” which prohibits officeholders from accepting anything of value from foreign governments. Mr. Trump has business interests in at least 10 other countries but has failed to fully disclose these potential conflicts of interest by releasing his tax returns. Will the federal courts agree? We don’t know. But we do know that the conflict-of-interest problem is a valid one. It would be nice to have some guarantee that a U.S. president’s foreign policy is guided entirely by public interest and not his own profit opportunities. And the Trump administration has already been found on the wrong side of the Constitution in other matters — most glaringly in its initial execution of a travel ban from majority-Muslim countries.

The 35 (of 65) Republicans in the Maryland General Assembly who put their name on the letter of complaint claim the case is frivolous and urge Mr. Frosh to make sure “precious” tax dollars of “Marylanders who toil daily to provide for their families are not squandered on lawsuits whose actual goal are meant to grandstand and score political points.” That’s a bit of puffery that, especially given that it was shared with the media before it was provided Mr. Frosh, represents a bit of grandstanding itself. Do Republicans think clean water or rip-off student loans are of no interest to hardworking Maryland residents? That the current occupant of the White House should not have to adhere to the constitution? Working people want honest government, too.

The attorney general’s critics are correct in this regard — Mr. Frosh should not file frivolous and purely political actions. As soon as he files one, we will complain loudly. (Of course, that’s not to say we approve of everything he does; he was flat out wrong to ask a federal court last month to dismiss a lawsuit on gerrymandering brought by 6th District GOP voters.)

In February, we argued that Democrats in Annapolis were correct to give the attorney general — any attorney general — authority to sue the federal government without permission of the governor. Republicans were chagrined, but it was the correct thing to do. Attorneys general in 41 states have common law authority to instigate lawsuits on behalf of the state without anyone’s permission.

The voters of Maryland didn’t elect Mr. Frosh to be a potted plant. If they are unhappy with his performance, they can take corrective action next year. Republican lawmakers can try to restrict his authority through legislation even earlier but good luck with that in a General Assembly still comfortably controlled by the other party. As President Trump has pointed out more than once, elections have consequences.

Editor’s note: This editorial has been updated from an earlier version.

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