For California attorney general, suing Trump again and again is a team sport
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For a man who has alternatively been called the face, the leader, and the speartip of the progressive “resistance” to the Trump administration, Xavier Becerra seems comfortable working outside the spotlight.
When Gov. Jerry Brown tapped Becerra to replace U.S. Senate-bound Kamala Harris as California’s attorney general, the 59-year-old congressman came with more than two decades of experience cutting deals and building coalitions as a high-ranking, but (outside certain political circles) little-known representative.
Now, almost a year into his Sacramento gig as the state’s top lawyer, Becerra’s office has put its name on 21 lawsuits against the Trump administration. By volume, that represents a rate of litigiousness unmatched by any of his counterparts in other states. But whereas the attorneys general of Washington, Hawaii, Maryland, and New York have been the first to file some of the year’s most headline grabbing cases—the travel ban, the DACA case, and the Emoluments Clause suit, to name a few—Becerra has been more likely to spearhead lower-profile challenges or sit back and provide support while others take the lead.
“Public service is a team sport,” he told CALmatters of his efforts working with attorneys general in other states. “You can’t get things done—whether it’s as a member of Congress or as an attorney general—without relying on a team.”
The approach is consistent with the public persona that Becerra—who was raised in Sacramento, represented part of Los Angeles in the House of Representatives, and was tasked with keeping his colleagues unified as chairman of the House Democratic Caucus—has cultivated for himself as a careful, dispassionate and capable public servant.
“We’re not looking to pick a fight, but we’re ready for one,” he said during his state confirmation hearing, and many times since—including during an interview this week. Before hitting the “nuclear option” of a lawsuit, he said, “we’d like to resolve things if possible. That’s what I had to do when I was in Congress.”
But by his definition, Becerra isn’t afraid to go nuclear. Beyond the 21 lawsuits, he has filed nearly 20 friend-of-the-court briefs, an avalanche of sternly worded letters, and a handful of cases in which the state has intervened on the same side as federal agencies sued by conservative groups or businesses, anticipating a half-hearted defense from the Trump administration.
Still, if California is the Democratic state leading “the resistance” against an aggressive Republican administration, it appears to be leading from behind at times.
When President Trump issued his first two travel bans, which barred citizens from more than half a dozen Muslim-majority countries from entering the United States, it was the attorneys general of Washington and Hawaii who led the charge, with California only joining later.
When the president announced that he was ending the Deferred Action for Childhood Arrivals immigration program, which allowed those who entered the United States illegally as minors to remain on a temporary basis, 15 states and the District of Columbia sued within 24 hours. California’s suit came a week later.
When the top law enforcement officers from Maryland and D.C. filed a suit claiming that the president had violated the anti-corruption Emoluments Clause of the Constitution, there was silence from Sacramento.
And when liberal comedy show host Samantha Bee interviewed New York’s Attorney General Eric Schneiderman, characterizing him as a literal comic book superhero battling to save progressive America from the Trump regime, Becerra went unmentioned.
President Trump’s legal tangles with Schneiderman pre-date his presidency—he has called the New York AG a “lightweight” and a “hack” out to get him. But the White House has refrained from striking back against Becerra in a direct way, instead insisting that lawsuit challenges are wrong-headed and expressing confidence that the administration will ultimately prevail in the courts.
Whether the California attorney general’s relatively low profile exemplifies political deftness and pragmatism, or merely a lack of gusto, depends on whom you ask.
Former Maine Attorney General James Tierney, for one, says Becerra has demonstrated national leadership “even in cases where his name is not in the headlines.” The skills that he developed in the House, building consensus and holding a caucus together, seem to have served Becerra in building ties with attorneys general in other states, said Tierney, a lecturer at Harvard Law School who teaches a class on the role of attorneys general. “He knew from his congressional experience that everybody counts.”
Since before President Trump’s inauguration, staff from the 21 Democratic state attorneys general offices have been holding weekly conference calls to share notes, anticipate the president’s next move, and build a nationwide strategy of litigative resistance.
“California, to its credit, has really stepped up under Becerra,” said George Jepsen, the attorney general of Connecticut, who has filed or signed onto eight lawsuits against the administration, six of them alongside California.
But while some see a team player, others call for a team captain. In that camp is Dave Jones, California’s Democratic state’s insurance commissioner, who hopes to unseat Becerra in next year’s election.
“We have a lot at stake in California and so we ought to be leading,” Jones said. “Much of what the attorney general has done is to join others’ lawsuits and I think you lose control—you’re not able to bring to bear the expertise of the California Department of Justice.”
Jones attributes what he characterizes as Becerra’s chief failure to a lack of legal experience.
“Mr. Becerra has been in Congress for 23 years. He hasn’t been practicing law,” he said. “What I bring to this is direct experience as a practicing lawyer, as a litigator who has been practicing law and preparing himself for the office of attorney general for my entire career. This is not something that just fell into my lap.”
Becerra’s qualifications for the job notwithstanding—prior to his legislative career, he served as deputy state attorney general—his appointment by Gov. Brown last December couldn’t have come at a better time. A late 2015 profile in Politico described the congressman as a perennial “up-and-comer,” whose rising political star was tethered by the shortage of available positions at the top of the party and a lack of broader name recognition. Maybe he could run for the U.S. Senate, the profile noted, but “his name ID outside Los Angeles (is) in the low single digits.”
That may be changing. If January 2017 represents a political nadir for the Democratic party nationwide, it was just about the best time to be a Democratic attorney general. In a state where voters turned against the current president by a two-to-one margin and when late night comedy hosts are treating litigants against the president as superheros, what left-of-center politician wouldn’t jump at the chance to be chief thorn in the president’s side?
On the right, not surprisingly, the California GOP has slammed the attorney general for a perceived fixation on the Trump administration. In an online political ad, Steven Bailey, one of two Republicans registered to run for the seat, bemoans the fact that the state’s top law enforcement officer “seems more occupied with fighting with the federal government in Washington than doing his job here in California“ over a video clip of Becerra speaking at the U.S.-Mexico border. He and other Republicans have argued that the attorney general’s office should instead focus on curbing the recent increase in the statewide violent crime rate.
But given the blue hue of California’s electorate, the question of who is best suited to take on the Trump administration is likely to dominate next year’s race.
“That’s a really fundamental shift in the nature of the job,” said Paul Nolette, a political science assistant professor at Marquette University. “One of the things that attorneys general are supposed to do is represent the state’s interest in court, but they have increasingly defined those state interests through a partisan lens.”
That shift began in the last few years of the Obama administration, when red state attorneys general such as Greg Abbott of Texas (now the state’s governor) and Oklahoma’s Scott Pruitt (now leading President Trump’s Environmental Protection Agency) led a conservative “rapid response team” against the Obama White House. Thus the famous quote from Abbott describing his job as the Lone Star state’s top lawyer: “I go into the office in the morning, I sue Barack Obama, and then I go home.”
Becerra may insist that he’s not looking to pick a fight, but that Texas approach has continued under Trump, stronger than ever.
“If you compare Becerra to AGs even 10 years ago, he’s very aggressive in terms of how rapidly he’s responding,” said Nolette. “I guess it’s all relative.”