Attorney General Herring’s Legislative Package

by James C. Sherlock

The Virginia Constitution (Article V, Section 5) assigns the Governor legislative duties. He is the only member of the Executive Department assigned such duties. The Attorney General has, well … none.

Of the duties of the Attorney General (Article V, Section 15), the Virginia Constitutions says only: “He shall perform such duties … as may be prescribed by law.”

The Attorney General heads the Office of the Attorney General, also referred to as the Department of Law. Under the laws of Virginia, primary duties of the Attorney General include:

  • Provide legal advice and representation in court for the Governor and the state in general and to members of the Virginia General Assembly and local government officials;
  • Defend the state in cases or criminal appeals and suits filed against the state;
  • Prosecute significant crimes; and
  • Defend the constitutionality of state laws.

Those duties illustrate why the Attorney General was not given legislative responsibilities in the Constitution.

It is impossible for him to both advocate for or against laws and be seen to be faithfully executing his duties. Virginians will always wonder whether such an advocate will fairly execute the laws or fairly advise the Governor and General Assembly.

Most importantly, there is the issue of the fact or appearance of public corruption.

The Attorney General, like other Virginia state and local elected officials, is the recipient of unlimited campaign donations.

Attorney General Herring set up One Commonwealth PAC in March 2014 to raise political donations. Major donors include Altria, HCA (hospitals), Brambleton Group (Ashburn homebuilders), McGuire Woods, American Federation of State County and Municipal Employees (AFSCME), Facebook, Williams Mullen, Genworth Financial, Anthem, Mid-Atlantic Laborers’ Political Education Fund, Service Employees International Union, Va AFL-CIO — you get the picture.

Another Herring donation center is the Democratic Attorney Generals Association of Virginia. Major donors are Rent A Center, Beverly Enterprises (Nursing Homes), Altria (again), Citigroup, Sprint, Service Employees International Union (again), Capital One, AstraZeneca Pharmaceuticals, Pfizer, major law firms and many more.

In all of his various fund raising committees, Mr. Herring has received nearly $3.5 million from single issue groups, $2.3 million from law firms, $1.27 million from organized labor and $378,000 from public employees.

Code of Virginia § 18.2-447. When person guilty of bribery.

“A person shall be guilty of bribery under the provisions of this article:
(2) If he accepts or agrees to accept from another (a) any pecuniary benefit offered, conferred or agreed to be conferred as consideration for or to obtain or influence the recipient’s decision, opinion, recommendation, vote or other exercise of discretion as a public servant or party official, or (b) any benefit offered, conferred or agreed to be conferred as consideration for or to obtain or influence either the recipient’s decision, opinion, recommendation, vote or other exercise of official discretion in a judicial or administrative proceeding or the recipient’s violation of a known legal duty as a public servant or party official;”

From Mr. Herring himself:

“I hold myself and the employees of the Office of Attorney General to the highest ethical and legal standards.”

So imagine my surprise when I read this press release from the AGs’ office.  The headline was:

~ Herring’s legislative package helped to make 2020 the most progressive legislative session in Virginia history, includes bills that will make Virginia’s criminal justice system more fair, equal, and just; protect vulnerable communities; protect consumers; and more ~”.

“I want to thank my colleagues in both the Senate and the House for helping to pass my priorities this year. And I look forward to seeing how much more we are able to accomplish next year.”

You should read the entire press release — an official press release/campaign document prepared by state employees at state expense. It is extraordinary.

We are left to wonder about the reaction of the Governor and the Democrats in the General Assembly to the Attorney General claiming credit for legislative victories.

This brings me to the letter I recommended be sent by one or more General Assembly Members to the Attorney General asking for an opinion on a list of questions concerning public employee collective bargaining.

As I understand it, that letter is in the mail to the Attorney General from a sitting Senator.

Will Mr. Herring’s answer be informed by Virginia law or the more than $1.6 million that organized labor and public employees have contributed to the Attorney General? We will find out.

In case you missed it, Mr. Herring wants to be Governor. The transition should be easy.