California Republicans were not impressed when legislative leaders announced last week that they had hired former U.S. Attorney General Eric Holder to assist with challenges against Trump administration policies, denouncing the move as a waste of money and a political stunt.
Assemblyman Kevin Kiley has another take: The contract, which will initially pay Holder’s law firm $25,000 per month for three months to advise the Legislature, is illegal.
In a letter to the opinion unit of the state attorney general’s office, the Rocklin Republican and former deputy attorney general argued that hiring Holder as outside counsel violates Article VII of the California Constitution. Kiley said California courts have interpreted that section “as forbidding private contracting for services that are of a kind that persons selected through civil service could perform ‘adequately and competently’ ” – such as “assisting in defending California against federal actions,” a function of the attorney general.
“In light of these facts, I respectfully ask your legal opinion as to whether the 1,592 attorneys and legal staff at the State Attorney General’s Office can perform ‘adequately and competently’ the legal services for which Covington & Burling has been retained by the Legislature,” Kiley wrote.
Representatives for Assembly Speaker Anthony Rendon and Senate President Pro Tem Kevin de León said the Legislature was exempt from rules that would apply to an executive agency.
“The Legislature has inherent power to obtain the services of the best resources available to it to understand the implications of public policy in its law-making function, including the interaction between state and federal law,” de León spokesman Anthony Reyes said in an email. “The provisions of law requiring a state agency to obtain the consent of the Attorney General before employing outside counsel expressly exclude the Legislature.”
Since Holder’s hiring was announced, earning California a spate of national attention, Republicans have sought to condemn the deal on all fronts. GOP lawmakers and operatives hit Holder for his role in Operation Fast and Furious, a federal gunrunning investigation that ended in scandal, and suggested that he was tapped because Democrats lack confidence in incoming California Attorney General Xavier Becerra.
Republicans have also raised questions about whether hiring Holder’s firm is a conflict of interest for the Legislature, a concern alluded to in Kiley’s letter. One of the partners at Covington & Burling’s Los Angeles office is the brother of a Southern California-based political consultant who represents state Senate leader Kevin de León and other elected officials.
“The California Supreme Court has observed that one purpose of Article VII is to prevent a ‘patronage/spoils system’ by which government officials give state contracts to politically favored individuals,” Kiley wrote.