As the top Democrat in a state controlled by a Republican legislature and governor, just about anything Attorney General Roy Cooper does is fair game for partisan criticism. Now that he is expected to run for governor, it’s guaranteed.
In recent weeks, Cooper has been asked to wade into a bog of contentious issues, stirring up more sustained criticism than he’s faced in 14 years in the office.
Last month, Donald van der Vaart, secretary of the state’s environmental protection agency, in an opinion piece published in The News & Observer, publicly called out Cooper for refusing to go along with the administration’s opposition to new clean-air regulations by the U.S. Environmental Protection Agency.
The regulations impose new limits on power plant emissions, and the McCrory administration called it unnecessary overreach by the federal government that could bring higher electricity rates. Cooper said he had constitutional concerns and was also worried about the impact on the environment. Then van der Vaart upped the ante by asking Cooper to file a legal brief opposing the EPA over new clean-water regulations, which van der Vaart contends will be costly to landowners. Cooper has not responded to that letter yet.
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The clash between Cooper and the McCrory administration played out as the attorney general was also being criticized from all sides for deciding not to retry a Charlotte police officer who shot and killed an unarmed black man. The jury was hung 8 to 4 for acquittal, and Cooper said attorneys in his office unanimously agreed it would be fruitless to try again.
That triggered criticism from the NAACP, the African-American caucus of the N.C. Democratic Party, Cooper’s primary election opponent Ken Spaulding, and the N.C. Republican Party. The GOP, while not unhappy with the outcome of the trial, issued a statement saying “Roy Cooper’s competency in handling this case from the very beginning and how he may have let politics influence the case raise serious questions about the attorney general’s priorities and if he is more worried about doing his job or running for governor.”
The GOP-controlled legislature has also complained about Cooper, saying it had to hire outside counsel in order to ensure its interests were represented in a number of cases. Cooper was also criticized for not continuing to defend the same-sex marriage ban after a federal court struck down a similar law in other states.
McCrory’s own attorney, chief counsel Bob Stephens, wrote a letter to Cooper last year saying the attorney general had complicated litigation related to Duke Energy coal ash when he solicited campaign contributions by referring to the Dan River spill. McCrory also said Cooper had injected politics into the spill by saying he would fight the utility if it attempted to charge customers to clean up the coal ash basins. Cooper’s office was advising the state Department of Environment and Natural Resources at the time, and assisting federal authorities’ criminal investigation.
Cooper’s campaign strategist, Morgan Jackson, said in an email Friday: “As attorney general, Roy Cooper’s decisions and actions are based upon the law and the best interests of the people of North Carolina.”
The attorney general’s job is to represent and advise state agencies and commissions, and take legal action on behalf of the public interest. That includes deciding when to prosecute, when to appeal, when to sue and when not to do those things.
Edwin Speas, who spent 32 years working for several attorneys general before leaving in 2003, said there is no specific obligation to legally challenge the federal government in a situation like the EPA dispute.
“If there are disagreements between the executive branch and the attorney general, the governor has the power to hire outside counsel,” Speas said. “Criticizing the attorney general for failing to take on a likely futile task at public expense is not well grounded.”
Tensions between client, attorney
James Coman, who spent 32 years as a senior deputy attorney general before retiring in March 2014, said the office clashed with the McCrory administration practically from the day it took office in January 2013.
“We really had a difficult time dealing with departments that were under the governor,” Coman said Friday. “It just seemed like they unnecessarily went out of their way to not get along, simply because we were the attorney general’s office.
“Their idea was, basically, their way or the highway. We could give them all the advice in the world and they would do what they were going to do anyway.”
Josh Ellis, the governor’s chief spokesman, weighed in on the tensions by email on Saturday:
“The McCrory administration has expressed legitimate ethical and legal concerns regarding the contradiction of the attorney general taking one side in court while at the same time having the attorney general soliciting campaign contributions taking the polar opposite position of his client, the state of North Carolina,” Ellis said. “The administration also strongly disagrees with the attorney general’s unwillingness to join other states to fight the Obama administration’s regulatory overreach at the expense of North Carolina taxpayers, immigration, healthcare and our environment.”
McCrory, speaking to reporters last week, said he approved of van der Vaart’s criticism of the attorney general over the EPA issue, and said it wasn’t political.
“My policies have been very consistent and I’ve been very critical of federal government overreach and at the same time critical at times of legislative overreach,” McCrory said. “I’ve been extremely bipartisan in my constructive criticism. So this has nothing to do with politics. It has to do with sound, efficient policy.”
A growing target
David McLennan, a political science professor at Meredith College in Raleigh, says this type of rift is not only typical but it is becoming more common.
“In the last 30 years attorneys general at the federal and state level have seen these charges being made with increasing frequency,” McLennan said in an email. “Not only are policy issues, such as enforcing clean water laws considered political, but increasingly on matters related to criminal offenses.
“Given that he is running for governor, he has become an even larger target for political groups on both sides. Republicans attack him for failing to address the EPA rules, while Democrats attack his decision to not retry the Charlotte police officer.
“The charges against Cooper made by Republicans will become major attack lines in his campaign for governor with the argument being made that he did not perform his role as attorney general, therefore he would not perform the role of governor well.”
Staff writer Craig Jarvis
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