Legislature's hiring of Obama's attorney general raises questions

By Malcolm Maclachlan
Thursday, January 5, 2017

[posted with permission from The Daily Journal]

The Democrat-controlled state Legislature's decision to hire former Obama administration Attorney General Eric H. Holder Jr. raises questions about how California's collection of top attorneys will work together, and if the move will spark or avoid more litigation with the incoming Donald J. Trump administration.

The announcement was made just one day after Gov. Jerry Brown nominated U.S. Rep. Xavier Becerra, D-Los Angeles, to become California's next attorney general. A spokesperson for Brown declined to comment on the news.

Assembly Speaker Anthony Rendon, D-Paramount, Senate Pro Tem Kevin de León, D-Los Angeles, and other state Democratic leaders have praised Becerra since Brown announced his nomination just over a month ago. The Assembly has scheduled Becerra's first confirmation hearing for Jan. 10.

According to a Tuesday engagement letter, Covington & Burling LLP — the Washington, D.C.-based firm where Holder is now a partner — will serve as "special counsel. The deal will focus on "three areas of immediate concern:" immigration, health care and environmental policy.

The timing of the announcement was coincidental, said Rendon's press secretary, Kevin Liao, based on both houses having signed the agreement.

"The AG is the chief law enforcement officer for the state, but does not represent the Legislature," Liao said. "We are seeking legal counsel that will specifically represent us as we explore legal means for defending California. The goal of this is to complement and supplement the AG's work, not replace it."

Besides "putting the Trump administration on notice," Holder could advise the Legislature on how to craft laws to avoid being sued by Trump's Department of Justice, said UC Davis School of Law Professor Carlton F. W. Larson.

The letter from Covington says the project will be led by Holder, former California U.S. Rep. Howard Berman, now a senior advisor at the firm, and partner Daniel M. Shallman. It states "the Legislature will be our client" and not "the executive branch or any regulatory body."

The state Legislature will pay $25,000 a month between Feb. 1 and April 30. The letter calls for Covington to offer "our wide array of regulatory experts as appropriate in helping the Legislature to develop legal strategies." Litigation "would not fall within the scope of this undertaking."

The fee is "eminently fair and consistent with industry standards," Liao said. Each house will pay half of the costs from "existing funds."

Holder was President Barack Obama's attorney general from 2009 to 2015. He spent much of that tenure fighting state-federal battles with Republicans.

Some Republicans have pointed to Holder's successful 2010 suit to block a tough Arizona immigration law as a blueprint for why California's efforts to set its own path on immigration may fail.

Holder also fought an Alabama county, accusing it of violating the Voting Rights Act. That case eventually resulted in a U.S. Supreme Court decision that overturned parts of the act.

Covington also has offices in San Francisco and Redwood Shores, and frequently represents companies and states against the federal government.

The Legislature maintains its own staff of almost 90 attorneys in the Office of the Legislative Counsel. That office will sometimes get involved in litigation, but is more focused on day-to-day duties such as drafting bills and determining if legislative proposals are constitutional.

The Legislature also sometimes hires outside attorneys to help with lawsuits, such as personnel cases.

A more high-profile example came about 15 years ago when the state Senate hired outside attorneys to help litigate energy price manipulation claims against Enron Corp.

Steven Maviglio, founder and president of Forza Communications in Sacramento who was Gov. Gray Davis' press secretary during the energy crisis, said the Enron situation was different because the Legislature had helped create the energy crisis with deregulation but disagreed with Davis about how to fix it.

"There was a frosty relationship between the governor and the Legislature on those issues," Maviglio said.

He sees the contract with Holder as more complementary: "He knows about the administration and Becerra knows about Congress. That's a potent combination."

Retaining Holder could serve as a "stopgap" measure while waiting for Becerra to get confirmed and staff up the state Department of Justice, said Jon D. Michaels, a professor at UCLA School of Law.

While the Legislature lacks the in-house legal resources someone like Holder can provide, Michaels warned that Democrats should think about how they would view it if Trump or a Republican governor did something similar.

"I worry about the message being sent when a state, especially a state like ours with a deep legal talent pool, hires privately," he said.

Senate Judiciary Committee vice-chair John Moorlach, R-Costa Mesa, said he is concerned about taxpayers footing the bill for Holder.

But he's more concerned about the state risking billions of dollars in federal funds by provoking the new administration, and is cautiously optimistic about de León's comments that Holder will help defend the state's finances.

"My mother always said, 'Sometime you've got to spend a dime to save a quarter,'" Moorlach said. "But if Eric Holder is being retained to poke a sharp stick in the eye of the president, then that's a mistake."