Attorney General Roy Cooper is not required to resign from his job to run for governor. But doing so might liberate him and erase questions from voters and critics about whether politics is interfering with his duty to defend the state’s laws.
A possible conflict of interest, or at least the appearance of one, is inescapable. Cooper, a Democrat, is running for governor against embattled incumbent Pat McCrory. At the same time, as attorney general, Cooper is charged with defending laws such as House Bill 2 that have political overtones. It’s difficult if not impossible to convince the public that the governor’s race will have no bearing on Cooper’s decisions as attorney general.
McCrory’s campaign on Tuesday suggested Cooper should resign, following explicit calls from Sen. Phil Berger and others for Cooper to step down. Those calls are surely politically motivated themselves, but they are understandable nonetheless.
Having said all that, the answer is not clear-cut, because the law gives mixed signals.
State law says the attorney general shall “defend all actions” “in which the State shall be interested, or a party, and to appear for the State in any other court or tribunal in any cause or matter, civil or criminal, in which the State may be a party or interested.”
Yet the same statute also says the attorney general shall represent all state departments and agencies, and Cooper points out that the Department of Justice and the state treasurer’s office both have policies that conflict with HB 2. The statute also says the AG shall “intervene, when he deems it to be advisable in the public interest … on behalf of the using and consuming public of this State.”
Most importantly, the attorney general, like all elected officials, takes an oath of office in which he swears first and foremost to support the Constitution of the United States. All of that arguably gives Cooper license not to defend HB 2 or any other legislation that he genuinely believes is unconstitutional.
Given the political stakes, however, there’s no way for the public to know if Cooper is opposing a law out of a noble, good-faith intention to abide by the Constitution or out of a desire to score points with Democratic voters. Voters who automatically support Cooper on this question should mull how they would feel if a Republican attorney general were to run for governor and choose not to defend laws passed by a progressive legislature.
For years, it was extremely rare for attorneys general not to defend the state in court. As society has become more polarized, though, it’s an increasingly common tension. North Carolina should explore ways to minimize the politics at play in defending state laws. Perhaps an independent special deputy attorney general could be turned to when the attorney general needs to recuse himself.
In the meantime, questions will surround an AG’s motivations, particularly when seeking higher office. The ultimate accountability can be provided only by the voting public.