Obedience to the law is demanded as a right; not asked as a favor.
— Theodore Roosevelt, Third Annual Message (1903)
A number of readers have written inquiring whether it is acceptable to have state attorneys general continue to serve in that capacity when they have been charged with criminal conduct and/or have lost their licenses to practice law. The reason for the inquiry is that readers know that the attorney general of a state is the chief law enforcement officer of the state, serves as the state’s principal legal advisor, and represents the state in litigation. Those tasks have to be done by someone who is licensed as a lawyer. Those are good questions and, happily, there are two real life examples that enable me to provide the answers to both those questions.
The first comes to us from Texas, where the attorney general is Ken Paxton. Ken was elected attorney general of Texas in November 2014. His official webpage says he is “known for his principled and uncompromising devotion to America’s founding values.” He served as attorney general with uncompromising devotion to America’s founding values for 8 months before being indicted for three different crimes that took place before he was the attorney general.
One crime involved directing his legal clients to a friend’s investment company without being properly registered as an “investment adviser representative,” a third-degree felony. The other two charges were first-degree felony fraud charges. In addition to having been criminally indicted, on April 11, 2016, the SEC filed civil charges against Mr. Paxton accusing him of breaking federal securities laws. He allegedly pressured five people to invest in a tech firm without disclosing that he was being paid a commission for the sales. He himself had not invested in the company because, he said, the president of the company said: “I can’t take your money. God doesn’t want me to take your money.” Apparently God didn’t have the same reservations about the president accepting money from Mr. Paxton’s investors. As of this date, Mr. Paxton faces three criminal indictments and the civil SEC suit filed in early April. He continues to serve as attorney general of Texas.
Mr. Paxton sees nothing wrong with continuing his work as attorney general while the assorted charges are pending. Indeed, commenting on the immigration case that Texas and 25 other states brought against the Obama administration that was argued in the United States Supreme Court on April 18, 2016 he said: “Our goal was pretty basic, defend the Constitution and stop President Obama’s lawlessness.” The word “lawlessness” may soon be used to describe Mr. Paxton’s conduct. The Texas Board of Disciplinary Appeals has ordered the Texas State Bar to pursue disciplinary hearings against Mr. Paxton because of his alleged criminal conduct. If that body finds he violated the disciplinary rules governing the conduct of lawyers he may lose his law license as well as the ability to continue to serve as attorney general.
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Mr. Paxton’s predecessor as attorney general is Texas Governor Gregg Abbott. Commenting on the accusations against Mr. Paxton when the criminal charges were first filed, the Governor said that the legal process simply had to “run its course.” Republican legislators have remained silent. There have been no calls for the attorney general to resign nor has there been talk of impeachment. In that respect, Texas is a bit behind Pennsylvania, the state that answers the question of whether an attorney general can continue to serve when his or her law license has been suspended. Pennsylvania’s contribution to the oeuvre is Kathleen Kane.
Kathleen was sworn in as Pennsylvania’s attorney general on January 15, 2013. She was considered a rising star until August 8, 2014, when assorted criminal charges, including perjury, were filed against her. Although she had not been tried for the alleged offenses, on September 21, 2015, the Pennsylvania Supreme Court responded to a request by the court’s disciplinary board for lawyers, that it issue an “emergency temporary suspension, ” by ordering that: “Respondent Kathleen Granahan Kane is placed on temporary suspension.” Under Pennsylvania law, a person serving as attorney general must be licensed to practice law.
February 5, 2016, the Pennsylvania Supreme Court unanimously rejected the attorney general’s request to reinstate her license to practice law. As of this writing, the attorney general faces 12 criminal charges including felony perjury. Nonetheless, she has refused to resign and continues to act as attorney general even though she is no longer licensed.
February 10, 2016, the Pennsylvania House of Representatives voted to begin the impeachment process against the attorney general by a 170-12 vote, Democrats and Republicans alike voting in favor of the process. The attorney general’s criminal trial is to take place in August 2016. It is, of course, not possible to know how that trial will come out. What is known is that as of this writing she is still in office and, like Attorney General Paxton, sees no reason to resign.
The difference between Texas and Pennsylvania is that the legislators in Pennsylvania are willing to take steps to remove someone from office who fails to see why she shouldn’t continue to serve. Legislators in Texas see nothing wrong in having an attorney general under indictment continuing to serve. That tells us as much about Texas as the criminal charges filed against Attorney General Paxton tell us about him-none of it good.