David Plymyer: Put the Blame on Frosh for State’s Big Legal Bill With Venable

Attorney General Brian E. Frosh (D) at the Maryland Association of Counties summer conference in Ocean City in 2019. Photo by Danielle E. Gaines

By David Plymyer

The writer is a former county attorney in Anne Arundel County. He can be reached at [email protected] or on Twitter: @dplymyer.

Criticizing Maryland Gov. Larry Hogan for trying to put an early end to federally funded expanded unemployment benefits is fair. Blaming him for the boatload of taxpayer money spent on a private law firm’s unsuccessful attempt to defend his decision in court is not.

The responsibility for that expenditure lies solely with Maryland Attorney General Brian Frosh. Mr. Frosh chose to speak out publicly against the governor’s decision with full knowledge that it meant that he would have to retain outside counsel to defend it. In my opinion, it was political theater by Mr. Frosh, with taxpayers paying for the tickets.

In June, Mr. Frosh, a Democrat, wrote an op-ed in The Washington Post that criticized Mr. Hogan, a Republican, for curtailing the benefits. It may be the most expensive op-ed in Washington Post history, costing Maryland taxpayers over $380,000 in legal fees paid to Venable LLP, headquartered in Washington, D.C.

When he wrote the op-ed, Mr. Frosh knew three things. He knew that his office was charged with defending the governor’s action against legal challenge by Article V, Section 3 of the Maryland Constitution.

He also knew that it was a virtual certainty that the governor’s decision to end the benefits would be tested in court. Finally, he knew that neither he nor his subordinates could ethically defend the decision in court if he took a public position attacking it, and that he would have to hire outside lawyers to handle the case. Which is what he did, selecting Venable.

Mr. Frosh’s op-ed contributed nothing to the public debate not said by others. He criticized the governor’s decision on policy grounds without questioning the governor’s legal authority to make the decision.

The op-ed did not cause the governor to change his mind. Nevertheless, it did accomplish one thing: No member of Mr. Frosh’s office had to defend the termination of the benefits, giving Mr. Frosh personal and political distance from an unpopular decision by the governor. It is fair to ask whether that was its sole purpose.

Mr. Frosh is not the first attorney general to be concerned about political appearances. Indeed, Baltimore Sun columnist Dan Rodricks once referred to his predecessor, Doug Gansler, as a “publicity-seeking missile.”

To my recollection, however, Mr. Gansler never sought to disqualify the AG’s office from defending a politically fraught case. I am sure that he understood that doing so would create a troublesome precedent.

The AG’s constitutional duties do not include writing op-eds criticizing policy decisions by other state officials with which they happen to disagree. The duties do include defending such decisions in court, whether or not those decisions enjoy popular support.

In a social media post, state Senate President Bill Ferguson (D) hinted at a legislative review “of the expenses in a single day [paid] to a mega-firm for two losing court cases,” implying that the governor bore responsibility for the expenses. I have no doubt that his reaction would have been different if the shoe was on the other foot.

If a Republican AG disqualified himself or herself from defending a decision by a Democratic governor because the AG disagreed with it on policy grounds, folks like Mr. Ferguson and House of Speaker Adrienne Jones (D) would be clamoring for the AG to pay the bills for outside counsel out of his or her campaign account. And they would have a legitimate beef.

The AG’s office was perfectly capable of defending the state against the two lawsuits that resulted in a court order blocking suspension of the benefits. There are situations in which conflicts are unavoidable and outside counsel must be employed by the AG for that or other reasons. This was not such a situation.

Rather, this was a situation in which there were two bad decisions. The first by the governor in trying to put an early end to federally funded expanded unemployment benefits. The second by the attorney general in choosing to publicly rebuke the governor, a rebuke that resulted in the gratuitous expenditure of over $380,000 of taxpayers’ money.