Rascovar: Giving Frosh his independence

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By Barry Rascovar

For MarylandReporter.com 

You can’t blame Gov. Larry Hogan, Jr., for getting irritated over the Maryland attorney general’s new authority – granted by the General Assembly – to sue the federal government without the governor’s permission.

This strips Hogan of a smidgen of his enormous powers. Yet if the Republican chief executive truly wished to stop this slight weakening of his powers all he did to do was pick up the phone and negotiate a compromise.

Instead, Hogan gave Attorney General Brian Frosh, one of the mildest mannered men in politics, the cold shoulder when Frosh requested the go-ahead to object in court to President Trump’s temporary ban on refugees and immigrants from seven Muslim nations.

Hogan called the delegation of power to Frosh “crazy” and “horrible” – but the real nuttiness lies in Hogan’s refusal to talk through his objections with Frosh and come to a reasonable arrangement each could live with.

Political divide 

Sure, Hogan is a conservative Republican to the core and Frosh is a down-the-line Montgomery County liberal Democrat.

Still, Frosh almost never picks a fight. His 20 years in the legislature were marked by quiet persuasion based on facts, open dialogue and finding middle ground.

Only when Frosh asked for permission to sue, provided back-up documentation to the governor and was met by silence did he opt to make an un-Frosh-like aggressive move.

Democrats in the House and Senate were happy to help him, since they were alarmed by Trump’s executive order against Muslim refugees and immigrants.

Numerous state attorneys general sued to stop the president’s executive order and temporarily succeeded in blocking it. Frosh wanted authorization from Hogan to do the same thing.

He said he was concerned by clear indications the new administration will wipe out the Affordable Care Act that gives health insurance to 430,000 Marylanders and anti-environmental steps that could damage the health of the Chesapeake Bay. He wanted the tools to speak out on Maryland’s behalf in court.

Weak A.G. 

Maryland is one of a handful of states that didn’t give its attorney general the independence to sue the federal government without getting an okay from the governor–until last week..

Indeed, this state has one of the weakest attorney general offices in the country. Only on rare occasions can Frosh’s office conduct a criminal investigation and try the case—the state’s constitution handed over those broad powers to the local state’s attorneys in 1851.

Maryland’s attorney general primarily staffs the law offices of state agencies, gives legal advice to the governor, General Assembly and judiciary, handles consumer protection issues, defends the state in court litigation and files lawsuits on behalf of state agencies.

Yet this is a statewide office just like the governor and state comptroller. All three are elected by Maryland voters every four years. Their authority is spelled out in the Maryland constitution. Yet Frosh’s office is unusually dependent on the governor for permission to act.

That’s never been a healthy situation.

Why create a constitutional law office without giving that office the freedom to carry out the full range of legal responsibilities normally handled by an attorney general in other states?

Why make the Maryland attorney general such a weak reed, unable to speak for the state on legal matters without first coming on bended knee to the governor for consent?

The current conflict over separation of powers never surfaced when Democrats occupied both offices. Usually the two elected officers were on the same political wave length and agreed on occasional litigation to protest federal actions.

Cover for Hogan 

Under Hogan and at times under Republican Gov. Bob Ehrlich disagreements have surfaced. Yet this need not have reached a point of separation if Hogan had ordered his skilled legal counsel, Robert Scholz, to work out an accommodation.

Frosh may have been close to the truth when he suggested this new arrangement actually gives Hogan the best of both worlds – despite the governor’s public protests.

Hogan doesn’t want to go on record opposing the new Republican president. He’s trying hard to ignore anything and everything Trump says that provokes controversy.

Yet it’s no secret radicals in the new administration want to deep-six Obamacare and purge all sorts of environmental regulations that could set back efforts to clean up the Chesapeake Bay.

Someone has to speak out and protest in court at the appropriate time. Hogan doesn’t want to alienate his Republican core base, yet extreme actions in Washington may require pushback from Maryland to avert harm to citizens and the “Land of Pleasant Living.”

The new delegation of authority by the legislature to Frosh solves that dilemma quite neatly for Hogan. He can continue to ignore Trumpian broadsides and dangerous executive orders while Frosh, on his own volition, tries to block Trump’s moves in court.

The governor’s hands are clean. He hasn’t forsaken the Republican president.

(He also can try to dissuade Frosh through well-reasoned arguments. The power granted Frosh requires that he notify Hogan of the attorney general’s intention to sue, wait 10 days so the governor can put any concerns he has in writing, and then Frosh must “consider the Governor’s  objection before commencing the suit or action.”)

Re-election battle? 

The real danger for Hogan could lie in the next six to 12 months if Trump takes such extreme steps affecting Marylanders, the state’s social programs and its natural resources that Frosh becomes the hero of the day – filing lawsuits repeatedly to stop or reverse Trump’s moves.

Should Hogan continue to remain mum during that time, ignoring the human toll of Trump’s actions, it might hurt the governor’s re-election chances.

Thus, Brian Frosh might place himself at the head of the pack of candidates running for the Democratic nomination for governor.

Could Hogan then face off against the attorney general in November 2018 just as Frosh’s popularity in vote-heavy Central Maryland soars due to his role as Maryland’s defender against heavy-handed actions from Washington?

It’s not far-fetched.

That possibility gains credence with Frosh’s request for a future annual budget of $1 million to create a five-person legal staff to sue the Trump administration when the public interest or welfare of Maryland citizens is threatened – be it their health, public safety, civil liberties, economic security, environment, natural resources or travel restrictions.

If Hogan, for political reasons, won’t oppose Trump and radicals in the administration, Frosh is the logical person to fill that void.

Giving him the power to act isn’t wild and crazy. It’s in line with the way things work in most other states. It ensures that Maryland’s interests will be defended by at least one statewide, constitutional officer elected by the people.

Barry Rascovar’s blog is www.politicalmaryland.com. He can be reached at brascovar@hotmail.com

  • Rick Williams

    More fantastical thinking from Rasco-man and his Hogan-can-do-no-good bias. Frosh picked many a fight over issues he really cared about — gun-grabbing and environmental regulations among them. There were others, I’m sure. What’s to compromise with a guy who wants to do something so he can be like the kids on the block — the AG’s with these extra powers — and a governor that doesn’t want to poke Trump? Dems always want to proclaim “Maryland is the only or one of the only states” to pass some onerous reg or some new right for a victim class, but when MD is one of the only states to put a leash on a statewide official, that is oh so unfair. MD Reporter should stop publishing this bilge.

  • Dale McNamee

    Why isn’t AG Frosh going after MS-13, Bloods, Crips, Black Gorilla Family, and other criminals ?
    Why isn’t he going after CASA de Maryland, illegal aliens, and “sanctuary cities”, “sanctuary counties” and Maryland for being a defacto “sanctuary state” ?

    That would be too dangerous ! Suing Trump is easier and safer…

    Pat McDonough on his Saturday radio show mentioned that Maryland could lose $2 BILLION in Federal money. And that new FBI center ? Forget it…

    Hope that everyone enjoys Frosh’s “freedom”…/sarcasm

    Barry should have his PC, smartphone, pens, pencils, paper taken away and put into a “rest home”…

  • Skip727

    Mr. Rascovar once again shows he is nothing more than a demonratic (not misspelled) hack. Does he really beLIEve that anything Governor Hogan would request of the demonratic GA or AG would be met with anything other than derision, which he himself shows ALL THE TIME. I think it’s time for Mr. Rascovar to start reporting what really goes on in Annapolis but wait, that would require doing some work…sorry.

  • dwb1

    Yes, Frosh should totally pick a fight and bite the hand that feeds Maryland. Frosh can totally gain leverage over the GOP, Trump and right-leaning Supreme Court. Makes sense. No blow-back at all expected.