♪♪
-Wow!
Big thanks to this wonderful audience.
I was a little concerned when I saw it was 77 degrees outside.
Thank you all for being here. It means a lot.
Big thanks to you,
Attorney General Nick Brown, for the time.
You seem a little busy sometimes.
Our Seattle University President Eduardo Peñalver leads us off.
-Welcome.
Great to have you here at Seattle University.
I thought I'd start with maybe a little bit of a --
just an orientational question for the audience.
Before you were elected as attorney general for the state,
you served for several years as the U.S. attorney
in the Western District of Washington.
Can you explain the difference between these two legal jobs?
How does your day-to-day change as you move from,
you know,
the federal prosecutor's office to the Attorney General?
-Well, first, I appreciate the welcome and thank you all,
everyone, for coming.
Looking forward to this conversation.
The U.S. attorney's job
is different in substance and in scope.
As the U.S. attorney,
you are the chief federal law enforcement officer
for Western Washington.
Every state has at least one U.S. attorney.
Washington has two divided by Eastern and Western Washington.
And you are principally responsible
for advocating on behalf of the federal government
on both criminal law and civil law.
The vast majority is in the criminal space.
About 80% of the work is prosecuting cases on behalf
of the federal government,
working with federal and state law enforcement officers.
And then you also represent the United States
in all of the civil litigation that happens in the district,
both on affirmative cases like civil rights enforcement
on behalf of the Department of Justice,
back when the Department of Justice
did civil rights litigation, and environmental enforcement.
And then also representing the United States
on defensive cases.
So, here, in the Western District,
that meant a lot of medical malpractice defense
on behalf of the military installations
or if a post office driver gets in a car accident with a citizen
and you sue the federal government,
you are represented by the United States Attorney's Office.
The scale and scope of the job
as the attorney general is vastly different.
One, obviously, represent the entire state.
Two, it is principally civil work on behalf of the state.
We represent every state government agency in Washington.
Not every state is situated like that.
And, in many states,
agencies can have their own independent in-house counsel.
In Washington, as a matter of law,
state institutions have to be represented
by the Attorney General's Office.
As a consequence,
I have a tremendous amount of lawyers and staff
that work for me.
For context, in the AG's Office, I have 834 lawyers.
We're the second biggest law firm on the West Coast.
Second only to the California Attorney General's Office.
When I was the U.S. attorney,
I supervised just under 80 lawyers.
So it's, you know, 10 times bigger.
And we do all of the representation
of state government,
but also I have a separate independent authority
to represent all of you.
And so I very much take seriously my job
as the advocate for the people of the state of Washington.
The Constitution empowers me
and me alone to advance cases on behalf of the people
when it comes to some of the affirmative civil litigation,
health care, civil rights, whatever.
And we bring a number of cases,
many of which are in the news. We're actually up to 15 now
because we filed two more cases yesterday.
But, also, at any given moment, we have thousands of cases,
both defensive and affirmative cases, so.
And now I have 13 offices all across the state
and spend a lot of my time working with our colleagues
across the state.
So my schedule is busier
than it was when I was U.S. attorney.
The other big difference for me,
personally, is that I don't have a boss
for the first time in my professional life.
I report only to the voters of the state of Washington.
And we also represent our clients,
much like any lawyer represents clients.
In the Department of Justice, I had a lot of independence,
but I worked for the deputy U.S. attorney --
or attorney general and the deputy or --
and the attorney general of the United States
and served at the pleasure of the president.
So I could be removed by any time
by the president of the United States.
-It seems that Democratic attorneys general
now have two jobs.
One, the basics, that some of which you mentioned,
consumer protection, civil rights, antitrust.
And, two,
protecting Washingtonians from certain actions
of the new federal government.
If this is true for you, it seems it might be,
how are you managing what amounts to two jobs in one?
-Well, it's certainly taking on more than it used to be.
But I don't -- this is not entirely a new endeavor.
You know, for many years,
attorney generals of both parties
have been bringing litigation against the federal government.
You know, AG Ferguson, in his prior role,
quite famously brought I think 100 cases
against the Trump administration.
And that was new in terms of the scale.
But attorney generals of both parties
have been litigating against the United States
for a long time now.
You know, many years ago, after Obamacare passed,
there were a number of state Republican AGs,
including the Washington attorney general,
who sued the Obama administration
over the legality of Obamacare. During the Biden administration,
Republican attorney generals brought cases
against Biden policies, et cetera.
It has increased in scale and significance
principally from my view
because our current president doesn't care about
the Constitution
and, second, is acting with more aggressive use
of the executive authority than ever in American history.
And so we, as attorney generals,
I think have an obligation to respond to that
to defend the rule of law,
to defend our state constitutions
and to defend the United States Constitution.
So it has certainly increased, but it's not entirely new.
-So we're still in the early days of your first term.
It's been about 100 days.
It feels like 100 years sometimes.
But, when you were running, you know,
you didn't know who was going to be president
of the United States.
So I assume you came in with a certain agenda,
certain priorities for your time as attorney general.
As you kind of enter this, you know,
second quarter of your first term,
what are those top priorities for you,
how have they changed in light of the -- you know,
the occupant of the White House
and how have they stayed the same?
-Well, you know, and what I want people to know
and to remember is, even though a lot of the public's attention,
and rightly so, gets drawn to the national litigation,
as I said, I think, at any given moment,
we have thousands of open cases in the AG's Office
and the 15 that we file against the president
and maybe just a small handful of those
are what draws the public attention.
But, in any given moment,
there are lawyers and professional staff working very,
very hard on behalf of their clients and behalf
of Washingtonians that never get the time and attention
that -- frankly, that they deserve.
So I want to make sure that people will recognize
that there's so much happening in the office
that has nothing to do with the president.
And those cases are often the most challenging.
We're talking about protecting children in child welfare cases,
we're talking about defending the state
in a very difficult tort litigation.
It's not as sexy
or as interesting as suing the president of the United States.
But, for me,
you know, I really wanted to focus the agency
more on some things that I think get to the things
that most of us are caring about on a day-to-day basis.
Traditionally, we have not done, as an agency,
as much casework or policy
work around issues around public safety.
And I really am trying to drive more focus around
how we keep the public safe,
both by working with local prosecutors,
but also getting to the things
that I think really make safety sustainable.
And that has nothing to do with police or prisons or jails.
There's a lot that we do that impacts the things
that we all worry about on a day-to-day basis.
And, again, that's usually little
to do with Donald Trump or the president,
whoever the president is.
How much am I paying in taxes, is my community safe,
do I have health care,
what is the quality of my kids' education in my neighborhood,
those are the things that really matter.
And, frankly, the AG's Office touches a lot of that.
But there are core sets of obligations
in my view of protecting Washington values.
There are things that make us unique as a state.
And I see that on a daily basis.
I see that when I talk even to my Democratic
attorney general colleagues across the country.
There are things that we are going to do differently.
And those are highlighted mostly in our affirmative litigation
and highlighted, in particular,
when we see a real attack on rights and values and freedoms
coming from the White House. And so, consequently,
a lot more of my own attention gets drawn to that.
When you sue the president and it's done under my name,
it's something I have to pay a lot of attention to.
And, you know, I wish we weren't in this moment.
But the moment that I think we're in
is defending Americans from their president.
And I don't say that easily.
You know, I've served in public sector
the vast majority of my career.
I started my legal career in uniform serving my country,
including a year spent in Iraq
during the height of the Iraqi War.
But it is necessary in my view in this moment
to defend Americans from their president.
And that's a pretty scary reality.
-Shifting back to where you started that answer
in the local level,
one of the -- one of the concerns that comes up over
and over again in public polling in the Seattle area
is public safety.
And the attorney general isn't, you know,
frontline prosecutor in our state.
So can you say a little more about what the AG's
Office can do and does do to support public safety?
-Yeah.
Well, first, it's interesting because a lot of people
think we are prosecutors.
And, you know, and I don't know how often I hear from the public
either in conversations
or when I make the mistake of looking at my Twitter account,
which my staff tells me not to do,
but I can't stay away, you know, like,
"Why don't you prosecute this and that," and,
"Why don't you investigate this?"
And the reality is I do not have any original jurisdiction
over the vast majority of criminal activity.
All of that is delegated to local county prosecutors.
There's a very small subset of cases
where we do have original jurisdiction
over a certain class of sexually violent predators.
But, for the most part,
the Attorney General's Office can only bring cases
at the request of the county prosecutor
or at the governor's request,
which has happened from time to time,
particularly around uses of police misconduct
or where there's been a controversial
or a complicated police use of force,
the governor has often requested the Attorney General's
Office to investigate.
That happened, for example,
with the Manny Ellis murder in Tacoma, Pierce County.
But, for the most part,
we don't do those cases without being asked.
But I made very clear coming into the door
to talk to the Prosecutors Association
and the Sheriffs and Police Chiefs Association
to tell them that we wanted to do more,
that it was important for me to be as much of a resource
as we could be for local law enforcement to take on cases
where there's a conflict of interest
and to be more of a resource.
And we've already upped the intake there.
And I've spent most of my law career in
and around criminal justice issues,
but I started as a criminal defense lawyer
when I was in the Army defending soldiers of crimes.
And I think, far too often,
when the public thinks about crime and public safety,
they only think about prosecutors and jails,
which are very much in my mind part of the solution,
but a very temporary part of the solution.
Ninety-seven percent of the people
that we put in state prisons are going to get out and rightly so.
And we, as a justice system,
need to be thinking about all the things
that lets those people succeed when they get out
and prevents them to get there in the first place.
And there's a lot of work in the AG's Office
around mental health support and drug counseling.
And, you know,
what keeps people out of jail is a good education
and a good job opportunity and community support.
And those are all things both through our casework
and through our policy work and through my own advocacy
that we should play a larger role in.
You want to reduce crime?
Give people affordable places to live.
Addressing the housing crisis, for example, reduces crime.
We don't think about those intertwined as much
as we should,
but there's a lot of that work
that I would love for us to see us play a larger role in.
-Washington State is now part of 15 lawsuits,
as you mentioned.
All I did was read the Seattle Times' piece that said 13.
Waited till 3:00 in the afternoon and it changed.
But the question is --
-You're not following us on Twitter.
You know? -That's it.
How do Democratic AGs -- and I've -- we've been told
that you meet virtually a couple times a week,
how do you decide which state leads on which case?
How did you, for example, become lead on birthright citizenship,
which is before the Supreme Court next week?
-Well, there's a lot of factors that go into it.
And it is one of the aspects of my job
that I did not anticipate would be such a big part of the job
is that, for better or worse,
I'm talking to my Democratic colleagues
three times a week at least.
Our staffs talk on almost a daily basis.
There's tremendous upside in that collaboration
and there are some downsides --
-Agreed.
--- both in time and resources and all that.
But, over a year ago,
the Democratic states started preparing
for the possibility of a second Trump administration to look
through Project 2025,
to look through the statements by the president
on the campaign trail to prepare for what we are now seeing.
And, as much as the president lied about
not knowing what Project 2025 was,
it is very clear that that was their playbook.
And so there was a lot of research and collaboration
amongst those states to think about issues
that we might be facing.
And so, as a result of that,
a lot of states took a leadership position
on certain substantive areas.
And, as a result,
when cases now come about,
a lot of the decision making is based on,
in part, who's done some of the work, in part,
who has the resources and scale of an office
to lead on a particular case and, in part,
on just strategically where is that --
the right court to file a case in.
Not every court jurisdiction is the same.
The president in the Ninth Circuit
is different than the Fourth and the First, et cetera.
Consequently, we've somewhat strangely filed a bunch of cases
in the District of Rhode Island in the last 100 days.
You know,
the upside around collaboration is that there was no way
that Washington or any other state
could lead all of these cases independently.
We just don't have the capacity to do that
so we share resources a lot.
The downside is when we join a multistate case,
when we're not in a leadership position,
we lose authority over that case.
And so, for example,
a lot of the cases that we filed in Rhode Island
around the illegal funding cuts, we're not a lead state on.
And so, you know, as a lawyer
and you want to file a motion to compel or do discovery,
you have a lot of control over that
until you let some other state lead about that.
But, you know, there's probably five or six states
that really have the capacity to actually lead one
of these states in one of these cases.
Washington being one of them,
you know, along with New York and California,
Massachusetts, Illinois, New Jersey.
But there are a lot of states that have much,
much smaller offices
and don't really have the opportunity to lead
or certainly not lead multiple cases.
So, you know,
some of the smaller states really want to be engaged,
but they have, you know, 80 lawyers or 100 lawyers
and they're doing a broad scope of work just like we are.
And so Washington, consequently,
has decided to lead on a number of these issues.
And there are some things that I just really care about.
We --
-That the birthright citizenship --
-Yeah, we led on birthright citizenship, in part,
because we had been the lead state on opposing
the Trump travel ban in 2017.
Our team had done a tremendous amount of work
around preparing for some of the immigration-related
executive actions that we're now seeing.
In part,
that is why we also led the illegal cuts
to transgender health care
because Washington had taken an outside role in that
and because many of my client agencies,
University of Washington and others,
had been national leaders on that particular area.
And not every state's going to be impacted
in the same way as well.
So, if you look at some of the cases challenging
the illegal mass firings of federal employees,
that, obviously, hit the District of Washington, D.C.
and Maryland more than any other state.
And so it was important
for those states to take a leadership role in those cases.
And so some of it is just who is impacted differently.
-Over the past few years,
I think we've seen a number of cases
in which legal theories have migrated
from kind of the fringe of the legal community --
-To the -- --- to the center.
Yeah, go there eventually.
I mean, one example was, you know,
the presidential immunity case where I think, you know,
as it was being litigated, a lot of legal academics,
including a lot of conservative legal academics,
didn't think it really had a chance to prevail
at the Supreme Court.
And then, at least, you know, in part, it did.
I have this fear that something similar
might happen with birthright citizenship.
Do you -- kind of reading the tea leaves,
do you share that worry?
How -- what are your thoughts on the viability
of the legal arguments you're seeing,
you know, against birthright citizenship?
-Well, I think it's right to categorize it
as a fringe legal theory.
It's a little hard to predict, of course,
how the Supreme Court will rule on such a case.
It is not clear to us even if the arguments
that are happening next week
are going to get to the merits of the issue
rather than some issues around the scope of relief
and national injunctions and the like.
But it is very clear that fringe legal theories have taken hold.
And I call it "fringe."
I mean, I'm, obviously, a Democrat.
And -- but I also -- you know,
more than anything else right now,
my job is to enforce the law and the rule of law.
And I very much separate my decision making around,
you know, there's a substantive issue
and I think reasonable people can disagree
about a host of things the president has done.
You can disagree about
how much funding federal agencies should get
and how big federal government is.
You can disagree about whether citizenship should be defined by
where you're born or who your parents are.
I think reasonable people can disagree about all those things.
That is not why I filed suit in those cases.
We filed suit because what the president has done is illegal
and unconstitutional.
And that has driven the decision making for me.
But, you know,
less well-supported or fringe legal theories get support.
And then some people who believe in those theories
get appointed to the bench
or take prominent positions in academia and elsewhere
and fringe legal theories then become a little bit less fringe.
You know, there is a reason
that the vast majority of the challenges
to Biden executive actions
were filed in a very small district court in Texas
is because that particular judge supports a lot
of what I would consider fringe legal theories.
It's also in the Fifth Circuit
which is the most conservative fringe-supporting
appellate court in America.
And we have seen our current Supreme Court certainly has
a more openness to supporting what I would say
are fringe legal theories.
It is very, very hard for me to imagine
that the Supreme Court of the United States
would overturn birthright citizenship as we know it.
I think Justice Alito will probably go there
because he's the worst Supreme Court justice.
But, even Justice Thomas,
who I disagree with on almost everything as a matter of law,
he is a true, legitimate scholar of reconstruction history
and I struggle to see
how he would overturn birthright citizenship.
But I -- nobody makes money on predicting what
the Supreme Court will do.
So I won't -- I won't bet on him.
-Yeah.
-Nick Brown, Washington and Oregon
are suing the federal government for trying
to change election rules,
which we're pretty sure would limit voting access,
especially in our state.
Is this a simple power duel over who controls elections
or does Washington's provision allowing mail-in
ballots to be postmarked rather than received by Election Day
make us a little vulnerable on this?
-Well, you know, this is one of those issues
that I was just talking about.
We should have robust debate about voting in America
and the right way to do it and the qualifications.
I think that is a healthy debate in America.
What the president is trying to do
is take over a state's sovereign right
to manage their own election systems.
And he simply has no authority to do that.
And, you know --
and I've personally struggled in the last 100 days
about raising the alarm for this moment
that we're in as a country without seeming like an alarmist
because I think,
if you look at my resume and for people that know me,
I am -- I'm very much a believer in the power of government
to be a force of good for people.
I'm very much a public servant.
I'm certainly not an activist or a reformer in many ways.
What is happening right now in America
should scare the hell out of all of us.
And I really -- I really mean that.
And the executive action around voting in America
is a good example of that of the president
trying to take authority over voting where there is clear law
that says he has no such authority.
And I don't know exactly why he's trying to do that.
My defense of that in that lawsuit is not because --
not really on the substances,
but really to affirm the rule of law
and the right of states to set their own standards.
And every state's a little bit different.
-But Washington,
by allowing the ballots just to be postmarked --
I wrote so many editorials over this,
it's enough to bore whoever had to read them.
But, to that point, we might be vulnerable on that point.
-Vulnerable to what?
-Well, because it's -- you know, the ballots aren't in,
they're not counted on that day.
-You mean vulnerable to fraud or --
-To challenges like this.
No, -- -Oh, yeah.
--- challenges like this. Exactly.
-Well, we're going to win this lawsuit.
I mean, I -- yeah,
I mean, we, California have very similar systems.
I'm not even suggesting it's necessarily the right way
to do it or the wrong way.
I very much believe vote by mail is the best way to do voting.
But whether you count it on Election Day
or simply it has to be postmarked,
I think people can disagree about whether that.
But I don't feel --
I don't feel like our case is vulnerable for that.
-So stepping back from specific issues,
at the federal level,
the attorney general is appointed by the president.
Here, in Washington,
you're elected separately from the chief executive
of the state, the governor.
How do you, as an attorney general,
think about or -- you know,
potential tensions or divergences
that might arise in your policies or priorities
with a governor of the same party
or at least presumably it could be a governor
of a different party at some point?
How do you think about that tension
between those two offices and how would you navigate those?
-Carefully.
Well, I mean,
we have a separately elected attorney general
I think for a reason.
Not every state does that.
There are some states where the AG is appointed by the governor.
That's true in New Jersey and Hawaii,
for example, and Maine -- or, sorry, in Maine,
the attorney general is appointed by the Legislature.
In Tennessee,
it's a little bit of a weird combination of factors.
Most states are like Washington, it's a separate elected,
but not every state does it that way.
And we, both the governor and I, wear multiple hats.
For me, the governor is my client.
He -- the Office of the Governor
and the governor himself
are clients of the Attorney General's Office,
just like
the Department of Transportation or Department of Commerce is.
And so we provide them legal advice
and represent them if they are sued.
And, now, that's an really important role for us to have.
But I have the independent authority
to represent the state of Washington.
I'm the only person
that can bring cases on behalf of the state of Washington.
And there have been times in our history
where the governor and the attorney general disagreed.
Most famously in Washington was over Obamacare
where Attorney General McKenna made the decision
to join the Republican coalition of states challenging Obamacare
and then Governor Gregoire very much did not want him to do that
and they fought about it.
You know, I've known Governor Ferguson for over 12 years now,
we've had a good professional relationship.
You know, it's weird where the governor's
also had your job before
and knows everything about the office.
You know, and there might be times where --
-Didn't he try to cut your budget?
-He tried unsuccessfully, yes.
Well, no, I mean, it was a little strange, you know,
to walk in the door and Governor Ferguson was proposing
to cut my budget by over $40 million,
which we successfully opposed the vast majority of that.
But, you know,
we are also facing a real budget crisis in Washington
so I don't begrudge him at the effort.
But there might be oppor-- you know,
there -- I'm sure there will be matters
where we disagree and we will have to navigate those together.
Our staffs talk.
The governor's staff and the AG's staff talk very frequently,
multiple times a week.
And so, you know, it's a careful relationship,
but it's an attorney-client relationship in many ways
and then it's two separately electeds
with their own scope of authority and responsibility.
And I'm sure there'll be times that we disagree
and we'll just have to navigate those.
-You alluded to this earlier,
but it's the degree and the number of lawsuits I guess,
but is the current level of legal activity
by Democratic state AGs --
did you borrow
that in a way from Republican attorneys general
during the exact thing you just mentioned, during Obamacare?
Texas AG at the time, Greg Abbott said,
"I go into the office,
I sue the federal government and then I go home."
-I wish I could go home after just doing that.
-So you cover the first two, not --
-Well, as I said,
I mean -- I mean, my -- you should look at my calendar,
it's like every day it's 10 different subject matter areas.
And sometimes it's a little dizzying
for me to bounce from getting briefed on this tort case
to getting briefed on this consumer protection case
to also planning some management decision or hiring decision
and then also, "Hey, by the way, we're going to --
planning on filing these two new cases
against the president of the United States."
But, you know, what we're doing now, certainly, you know,
in 2025,
it's a vastly higher amount of cases
against the federal government that had happened 20 years ago.
You know,
when AG Ferguson first led Washington's suit
against the Trump administration in 2017 against the Muslim ban,
at the time, I was the governor's counsel and so I was
on the ground working with the AG's Office on that case.
But it was -- he was -- Washington was --
sued the president alone.
No other state wanted to join.
Now, that changed and more and more multistate cases happened.
But, at the time,
most Democratic states in the country
did not want to be part of that.
And there was a lot of reluctance around suing
the president of the United States.
And that has changed, obviously. You know, and I --
sometimes I laugh when I see complaints from Conservatives,
Republicans saying,
"Well, you know, President Trump --
or Biden only had these many injunctions against him
and Trump has this many."
It's like,
"Well, here's a lot of illegal conduct and here's a lot less."
And that is why I think really we're --
we have so much more activity now.
It's not a matter of a pure change
in philosophy or approach,
it is a matter of having a president who is lawless.
-So I thought I heard you hint at my next question
when you mentioned a lot
of cases being filed in Rhode Island.
TV Legal Analyst Jeff Toobin recently wrote
that Liberals love lawyers
and often take their cases to sympathetic
lower federal courts. So I ask you,
"How much truth is there to that
and is it still perhaps the best way
to get these cases before the highest court?"
-Well, like every lawyer is going to be strategic.
You don't --
like the Democratic AGs would never file a case
in the Northern District of Texas
because we would almost certainly lose
on these challenges to the president's authority.
Conversely, Republicans,
as I said, have brought a lot of cases to that district.
And we have to be strategic about not only
the district court,
but the appellate court.
And the Ninth Circuit, for example,
has changed pretty dramatically in the last 10 years or so.
There was a time where the Ninth Circuit was viewed as --
and rightly so,
as the most liberal, progressive court in America.
That is very much not the case anymore.
So, you know, in a prior era,
it might have made more strategic sense
if you're advancing Democratic legal principles,
although I don't view them as Democratic or Republican,
to bring more cases out here.
But that's not certainly the case anymore.
We have a very strong, in my mind,
district court in the Western District of Washington.
And I would love to continue to bring cases out here.
But, when you're dealing with multistate jurisdictions
as well,
sometimes you have to be very strategic about
where you bring those cases.
And, as a result of the 15 cases that we filed,
I think three or four are in the Western District of Washington,
Massachusetts, D.C.
and Rhode Island have gotten the rest of them.
-So you mentioned the Northern District of Texas.
And I think in an earlier answer
you mentioned this issue of national injunctions.
And I just thought it'd be helpful for the non-lawyers
in the audience
if you could explain what is a national injunction,
why would it be the case that a district court
in Northern Texas, a trial court,
would have the power to issue an injunction
for the entire country?
Is that overreach? Is it a good thing?
What do you think on that issue?
-Well, you know, in very simple terms,
courts have the authority to issue an injunction
when a challenge is brought.
An injunction, essentially, says,
"Federal government" -- well, in this case,
"Federal government,
you no longer have the authority to advance
with this executive order or whatever action you're taking."
The court could limit that to just the state
where that action is brought or they could bring it nationally.
And we certainly saw in the last 10 years
pretty sweeping national injunctions stopping
executive action.
Both by the Biden administration and by the Trump administration,
national injunctions were much more common.
There has been a real noticeable shift away from that
where appellate courts are being much less likely
to grant national injunctions.
And I -- to me,
that's not a Conservative or a Liberal legal philosophy.
I think there's a lot of -- you know,
there's some really good arguments to say,
"Well, you shouldn't have national injunctions
when only parties are being impacted
in a particularly discreet area."
You know, a good example for me is
when the president illegally cut grant funding
to the National Institute of Health.
There -- every Democratic state joined that lawsuit.
The injunction that was granted in that case
meant that only relief came to those 23 states
that participated,
which means all of the conservatives
Republican-led states in America
did not benefit from that injunction.
You know, Alabama, for example, gets --
by far, is in the top two or three number of states
that get NIH funding.
But, when the injunction was granted in that case,
they did not benefit because they didn't participate
in that litigation.
So there are some issues where it makes sense.
There are others where it's a little harder.
For example, at least in my mind,
it would be hard to say birthright citizenship is legal
in Washington but illegal in Texas.
In theory, you could do that,
but then it would be a real question if you are --
if you're granted citizenship when you're born in Washington
and then what happens when you travel to Texas?
Do you lose your citizenship? Have you lost your country?
So there a lot of issues
where it's hard to imagine a court granting relief
that wasn't nationwide.
You know, if Congress passed a law banning assault rifles,
which they should do,
but, if they did that,
it would be hard for a court to say it's legal in some states,
illegal in others.
But there has been a real tightening around the use
of nationwide injunctions.
And that is really the main issue
that the Supreme Court is going --
or has indicated they're going to decide
around birthright citizenship next week.
In theory,
they could decide the whole substantive merits of the case.
But, at least right now, they've indicated
that the case is going to be around
whether it was appropriate for Washington
and the judge in Massachusetts
to issue nationwide injunctions stopping the president's
executive order,
whether it should have been limited
to those states participating in the case.
-So, you know,
a court can either order the government to stop
doing something
or order the government to affirmatively do something.
I think, in recent weeks, we've seen cases where,
in response to those kinds of orders,
the government either continues doing something
or fails to do the thing they were ordered to do.
As an attorney general,
how do you think about what your powers are,
what are the powers of courts themselves
to enforce their orders when the government does that?
-Well, you know, there's the way
that things have traditionally gone and should go
and the way things are going now.
Well, let me first say, I think,
for the most part, our system is working the way it should work.
The president's doing things that parties,
states are arguing that it's illegal,
we file cases lawyers for the states
and the Department of Justice go to court
and a judge has a hearing, issues ruling, et cetera.
And, for the most part,
in all of the cases that we've been a part of
and some that we have not been a part of,
for the most part,
the federal government is abiding by the court's decision.
There's been a couple cases that we've been involved in
where it hasn't happened as quickly
or as thoroughly as we think it should have.
You know, in some of the grant funding cases where --
that we brought,
we continued to see states have certain funds be cut off
that we thought were covered by the court's order.
And so then we did what is normal,
we go back to court and say, you know,
"Either a motion to compel
or a motion to enforce your judgment."
And, for the most part,
the department and the government has complied.
And, really, just in the last couple of weeks,
we're dealing with what I view as pretty overt disregard
for court orders,
particularly around some of these immigration cases
that we are not a party in.
And I really don't know what's going to happen.
You know, we continue to see judges have hearings, enforce --
or force the Department of Justice
to come defend their positions. We've seen a real, from my view,
stonewalling by the Department of Justice.
And, in the last handful of years,
the Supreme Court has expanded the power of the president.
You know, rightly or wrongly,
that is true that presidents today can legally get away
with a lot more than they could have 20 years ago.
You know, I think one of the reasons
that it's been important for us to bring cases not only
against the president but the administration and departments
more broadly is because it is one thing
for the president to ignore court orders,
it is another thing for Joe Smith, head of whatever agency,
to ignore court orders and to be subject to
both civil and criminal contempt provisions.
And, also, you know,
every lawyer for the Department of Justice
has a duty of candor and ethics
and, when they go to court
and argue positions on behalf of their client,
they can't -- they should not do it in disregard
for their ethical obligation.
And I've -- I think we've seen a number of lawyers tow that line.
You know, and as much as I am very clearly frustrated
with our current president of the United States,
as someone who grew up professionally
in the Department of Justice,
I think what we're seeing in the deterioration
from the Department of Justice,
it personally troubles me more than a lot of the other conduct.
You know, the attorney general of the United States,
who is certainly the most powerful law enforcement officer
in America, if not the world,
her current view is the 2020 election was stolen.
I mean, it is beyond absurd.
About a month ago, she said quite explicitly,
and this is almost an exact quote,
that the Department of Justice would find
and root out and get rid of Department of Justice employees
who oppose the president of the United States.
This is the top law enforcement officer in America
saying that you are going to be rooted out
because of your political beliefs.
I mean, that is scary to me.
And that permeates the Department of Justice,
the FBI and who knows where else.
And that is coming from the top
of the highest levels of government.
And, because of that is their general legal philosophy
and position,
and, again, I -- this should trouble everyone,
whether you voted for the president or you did not,
whether you support his policy objectives or you did not,
can you imagine if Merrick Garland had said,
"We're going to find
and root out everybody in the Department of Justice and FBI
who voted against President Biden"?
Can you imagine the uproar in America?
And I think we need to speak the truth in this moment
more than anything else right now.
And that is certainly how I feel.
And so, you know,
I worry about DOJ lawyers going to court
operating under this environment
where they still have this duty of candor and ethics
to their state, to their clients,
but they're being put in,
or have chosen to be in, very precarious positions.
You know, the lawyers of the DOJ
that are arguing the case of the --
for people that were deported to El Salvador illegally,
you know, they're being asked to defend their clients' actions
and haven't had a whole lot to say.
And I do worry about what this might mean
in the coming days and weeks
as we continue to litigate these cases.
-So I just want to follow up on one thing
is you mentioned the expansion of executive power,
which I agree has been happening for decades,
right, and it -- under both parties.
Right?
The executive power continues to grow
and you see an increase in the number
the use of executive orders kind of steadily --
I mean, this president takes it to new levels,
but it's been happening for years
and people tend to like executive action
when their party's in the executive power
and then they don't --
last year, the Supreme Court,
you know, overruled its decision --
long-standing decision in the Chevron case,
you know, that extended judicial deference
to executive agency actions in the --
this is the Loper Bright case.
And, when that happened, it was characterized by,
you know, progressive lawyers as judicial overreach
because it expands judicial kind of --
judicial review of agency actions
and kind of creates a lot of space for federal courts
to second guess agency decision making.
Now, right, we want judicial oversight of executive action.
And so is there a contradiction there
or is that an example of just kind of we like executive power
when it's our executive?
Or is there a principled reason
to be both concerned about the overturning of Chevron
and wanting more judicial oversight of executive action
now that we have a Republican in the White House?
-I guess I don't tie those two
together in quite the way that you have.
I mean, I think the Chevron decision might have been
the most consequential Supreme Court decision that --
-Justice Stevens.
--- very few people know about, right,
because it, one,
was overturning a president
and the end result is going to be a real empowering of judges
to rule on things they know nothing about.
In terms of pure like logistics,
it's going to cause our courts to grind to a halt
and will necessitate I think a fairly significant expansion
of the number of judges and courts in this country.
You know, if you have a federal civil case
that is not one of the ones that we talk --
we've been talking about,
the likelihood that you're going to get your case heard
in a timely fashion was dramatically decreased
by that decision. I don't know if --
necessarily if I think about it
in judicial overreach kind of terms,
other than it has empowered judges
to have much more authority.
But I think, you know -- I mean, I think there's fair criticism.
When President Biden attempted to wipe out student loan debt,
you know, substantively, I was like, "Yeah, that's great."
Legally, I think it was really questionable
whether he had that authority.
And you didn't see Democratic attorney generals
suing to stop that.
And that -- so I think there's fair criticism.
You know?
And people should hold me to that same standard.
If we're talking about enforcing the rule of law,
that should apply to everyone.
And so I think, you know --
when I think about more about
how Democrats have responded to executive action
of prior presidents,
I'm sure if you ask Republican attorney generals today
about the scope of what the president is doing,
they would privately -- some of them would privately tell you,
"Yeah, there's no legal authority
for the president to do that."
But none of them have joined a single one of our cases.
But we are both the chief lawyers for our states
and all partisan, which is the nature of our system.
You know, we -- Washington's have --
Washingtonians chose to elect separately
their attorney general.
And, as a consequence,
there's an electoral process and politics
and all that that goes into it.
But I try to be very consistent in making sure that --
when I act on behalf of you all,
that I'm doing that consistently with the law
and my ethics
and what I think is in the best interest of the public
that I serve,
even though I know at best I'm going to make 55%
of Washingtonians happy and 45% unhappy.
-You're going next. Right?
-What is the overall importance
of Harvard University's lawsuit against the administration?
-Well, it's strange for me in this moment,
even though I'm a Harvard grad, to be saying, "Yay, Harvard."
Same thing for like Perkins Coie,
it's not often that big law gets really -- their kudos,
but, yay, Perkins Coie.
You know, I think it was a real important moment not only
for Harvard University,
which, obviously, has the largest --
or one of the largest endowments in the world
and probably has more flexibility to take
on that bold stand,
but I have been really shocked
by the capitulation of major institutions or companies
or law firms in America.
And to see Harvard take a principal stand,
I think really was not only the right one morally
and ethically and legally,
but it was also the right one pragmatically.
I think the mistake that Colombia made is that you think
that, when you just agree
and capitulate to the president's demands,
that that's it, that he's not going to come back for more.
And I think that is the strategic error
that Colombia and others have made.
And I think Harvard recognized that, if we say yes to this,
there will be something else.
But I -- you know, as a lawyer,
I'm really distraught at what has been
either silence or capitulation from the legal field.
You know, Perkins rightly made the same sort of analysis
that Harvard did and Washington State,
in our office, led the amicus brief in support of them.
Ninety-one of the top 100 law firms in America
said nothing at all.
Ninety-one of the most profitable,
largest law firms in America refused to sign on
to subsequent amicus briefs or to say anything in opposition,
thinking if they just kept their head down,
that this would go away.
And it is both I think a disregard
for their legal obligation and their moral obligation,
but really a strategic error
to think that they would not be next
and that there would not be more ask of this president.
So I'm really proud of Perkins, of Susman Godfrey.
And, for the law students in this room,
I hope you all think about
where you seek employment in the future.
And if you're an employ -- someone who hires law firms,
I think you should think very carefully
about who you hire to be your representative.
And, if people will capitulate and fold on one person,
they'll capitulate and fold on others.
-President Trump believes he has a mandate to rule.
Is there a good argument, it doesn't sound like it,
but I'm just going to ask it,
to dial back the number of lawsuits they file?
In other words,
do lawsuits put Washington residents in more or less peril?
-Well, you know, the president -- well, one,
he won the election.
The majority of Americans decided
that he was the right person to lead this country.
I, obviously, wish
that we had made a different decision as a country,
but I don't disregard his ability or authority.
From my vantage point, I also won an election in Washington.
The people in Washington had very stark choices
for attorney general between me and a Trump supporter.
They decided that I was the right representative
for the state and this role. And I do not think
that I should ever say I'm going to allow the law to be broken
because it might benefit us and my state.
You know, and not every case is the right one for us to join.
I haven't joined every single lawsuit
that have been filed by my colleagues.
I make a pretty straightforward analysis about
whether it's illegal,
whether it harms Washingtonians and whether we should
or need to be a necessary party in a particular case.
And not every --
in not every circumstance of what I think is
an illegal action have we decided to join a case.
And the fact that we have a president
that acts with retribution and vengeance,
I do not think should dissuade us.
I would not be the right person for this job
if I buckled under that sort of pressure.
At the same time,
you know, we have right now the attorney general
and their border czar and the president
talking about arresting
and prosecuting governors and attorney generals.
And I had a congressperson two
or three weeks ago call for my prosecution,
which is really strange.
It wasn't a Washington congressman.
But, you know,
they were saying that I should be personally prosecuted
because of our defense of Washington State law
around immigration enforcement.
And, you know, in this moment, you can back down from that
or you can continue to stand on your principles and values.
I do not disregard the fact that the president is
and has been threatening to take action against states
who are doing things
that he disagrees with around immigration law, around DEI.
But I do not think that we want leaders to cower
because we have a president who behaves like that.
-How do you -- just thinking about that,
you know, the -- some of the more outrageous things
that the president calls for,
some of them he does, some of them he doesn't do.
And -- -Like opening Alcatraz?
-Yeah, exactly.
How do you like --
but how do you think about the sort of mental triage involved
in responding -- choosing what to respond to, what to ignore?
Obviously, if you ignore some extreme suggestion
that the president makes, you risk, you know,
missing an opportunity to really underscore how outrageous it is.
But, at the same time,
there's so much volume of outrageousness
that it can kind of occupy your brain in a way
that's also not productive. So how do you --
how do you kind of personally think about that process
of sort of mental triage?
-And I'll just interject, I've been watching our time minder
and we have time for two more questions, so --
-Okay. Well, I mean, like everyone,
you know, my job is to be attorney general.
It is not my life. Right? I have two kids.
Getting home for the myriad of sports activities
that they have in this moment is the most important thing
for me to be present for them,
to have my own private life,
personal life to connect with friends and family.
Like those are the things
that I need to do to maintain my own sanity,
much like we all do in our lives.
It is something that I try to emphasize for my entire team
because, as busy as I am,
the people that are actually doing the litigation work
on behalf of Washington, they are grinding it out right now.
And so I'm very mindful of trying to maintain
that work/life balance.
You know, the upside of --
the thing that I love most about my job is that every decision
that I get to make matters. Every single one.
Like the things that come to my desk
are the hard decisions on
whether we're suing the president
or how we're resolving a difficult tort case
or manage an office of 1,900 people.
I love the fact that everything feels significant.
The thing that I don't like about my job
is that everything feels significant.
You know, about a month ago, I said to my staff,
"Can you just bring me some easy decision today?"
But, you know, I mean, I chose to be in this position
and I'm having so much damn fun being attorney general,
I really am.
And it's an honor to be in this position.
And I also recognize that it is limited.
Like I will be in this role for four years, maybe more.
But, at some point,
I won't be the attorney general
and I need to maximize the moment.
And, you know, my friends and my kids,
they keep me grounded, they keep me humble.
And you do give up some of your privacy and personal life.
You know, I get recognized a lot more these days.
It happens when you're in the news
and on the cover of the Seattle Times, like yesterday.
And it's a little strange
to lose a little bit of your privacy.
I got a little used to that
because I was on "Survivor" 22 years ago.
Well, that's another story.
-Well, let's go there.
I -- you know, I -- one of the things
that the present moment reminds me of is reality TV.
I feel like we're living in a reality TV show.
But you were a contestant on "Survivor: Australian Outback."
And, according to the website Survivor Wiki, --
-Oh, no.
--- you drew the --
you drew the ire of some of your competitors
for being a relatively quiet character
who they feared might fly under the radar
and then pose a threat later.
Was this a strategy that you brought to the show
or is this kind of stealthiness something that you --
just sort of a character trait
that you employ in other settings as well?
-Well, you have to keep in mind,
when I went on "Survivor," reality TV was like brand new.
Nobody knew much about reality TV.
When I told my Army colonel father
that I was dropping out of Harvard Law School
to go on a "Survivor" reality show, he was really angry.
-That seems fair.
-You know, part of it was strategy,
part of it was, you know,
if you choose to go on a show like that,
you're kind of an A type personality.
And, in my mind, I was like,
"Look at all these A type personalities.
They're going to just kill each other
and argue and I'm just going to slide and be quiet."
Part of it was my own mental health.
Like, "I can't exist in this turmoil."
But I -- you know, I loved being on the show.
It was a tremendous amount of fun.
And it's -- I was on Season 2 and now they're on Season 48
and it's pretty remarkable.
I was 23 and had earrings and I was a young man.
But it did -- you know, I sort of joke --
-How can everybody watch this, of course?
-Well, it's still on Netflix or Peacock or something.
But, you know,
in more -- a little bit more seriousness,
it was my first exposure to being somewhat
of a public person
and some -- I've reflected on that from time to time
that that was the first time
I got used to people recognizing me,
which, as a 23-year-old young man, it was pretty cool.
Right?
I got to skip lines at clubs and do all these fun things.
But then you also give up some of your privacy.
And people think that they can come
and put their arm around you and talk to you.
And, you know,
and, again, I chose to be on that so I -- it was voluntary.
But it was a little weird experience of you
lose a little bit of your identity and people
think what they see on TV is who you are, much like, you know,
when I take a position of a case now,
everybody thinks that like that's my
personal substantive view.
And sometimes it is.
Sometimes it's just
because that's what the law requires, so.
"Survivor" lessons.
-Thank you so much. Thank you.
We are now going to have some of your audience questions.
I hope you've been thinking of them.
-I'll take my mask off so you can see.
One compliment and one question.
The compliment is I'm a former political press secretary myself
and I know that politics is all consuming.
So thank you for your service. The question is this,
"The Seattle Times reported in the early days of the adminis --
your administration
that you and Governor Ferguson
had a little dispute about collecting damages
that the AG's Office wins
and Governor Ferguson wanted it to go to the -- oop, sorry,
to the general fund
and you wanted to keep it to hire more lawyers
and do more suits. Has that been resolved?"
-I actually don't think that's accurate.
So I'm not sure I -- we never had a dispute like that.
So -- we had a dispute about him trying to cut my budget
and I opposed it publicly.
But, actually, I'm not tracking with the specifics
you're asking about.
But my comms director is here
and we'll talk to you after this.
-Yeah, thank you.
I'd love to hear you expand a little bit more on the idea
you were talking about protecting Americans
from this current administration.
And I'm wondering what kind of measures
you are taking currently or are willing to take
and plan to take to respond to their crackdown on immigration
and especially the authoritarian playbook
we're seeing that target students,
whether we've seen it in Colombia or Tuft.
So what are you and your office doing to ensure that,
if something like that was to happen in Washington,
and we're already seeing different things
with visa revocations even at our own university,
with Dixon being detained at Northwest Detention Center,
just what's your response
and how are you being proactive to deal with that?
-Yeah, I think it's probably one of the more important areas
that we are involved in right now.
The scope of our authority is important,
but also somewhat limited.
So the most important thing that we need to do in this moment,
as a state AG's Office, is enforce state law.
The most important state law around immigration enforcement
is the Keep Washington Working Act,
which was passed in 2019,
which set pretty clear limits about how state entities,
including local law enforcement,
could cooperate with immigration enforcement or not.
It put some pretty tight constraints
on local law enforcement in that regard.
I will tell you the single most difficult case
that I decided to file was not actually against the president,
but it was against the Adams County sheriff
for violating state law
because of their explicit cooperation with ICE
in contrary to what state law requires.
Again, I think reasonable people can disagree
about what state policy should be in that space,
but it is pretty clear
that state law prohibits what
the Adams County sheriff was doing
and so I decided to sue the sheriff and the county
to set those clear limits.
We also do a lot of work around immigration issues,
around the labor and the workforce,
to make sure that people who are undocumented
are not being taken advantage of
or having their own rights violated by employers
who threaten detention or enforcement in the workforce.
And that happens a lot.
At the same time,
the federal government has pretty explicit
and clear authority to do immigration work.
And it is not the state's job
to do immigration enforcement nor to hinder it really.
So it's a difficult position for us to be in.
But I do think the types of --
and immigration enforcement has been happening
for multiple presidents.
I mean, President Biden, President Obama,
President Clinton all deported lots of undocumented people.
What we are seeing now,
however, is a real draconian, arguably, fascist attempt
to I think literally kidnap people off the street.
And, not only kidnap them,
but then send them to foreign countries
of which they're not part of.
And the total disregard for their due process rights,
again, should be alarming to people.
And, you know,
part of the reason I think it's really important
for us to defend
Keep Washington Working Act is that I don't want
the King County Sheriff's Office or Pierce County or Adams County
to be in that position of cooperating
with the illegal erosion of due process rights.
And, most -- frankly,
most local law enforcement don't want that role either.
You know, the Washington Sheriffs and
Police Chiefs Association has been pretty clear
about establishing state law/federal law boundaries.
And it is an important area for us to play a role in.
And -- but we can't.
It is not our job nor our authority to oppose everything
the federal government is doing,
but to defend
and protect the interests of people here in the state.
-So, as you may know, recently, House Bill 1163,
the bill to create a permit to purchase firearms system here
in the United States -- here in Washington State was passed.
It's something that you testified in support of.
But, given the administration's new approach to gun violence,
such as getting rid of
the Office of Gun Violence Prevention,
are you expecting any legal challenges
when this bill may be turned into law in Washington State
and how are you making sure
that the gun laws that we have here in Washington State
are still also protected and upheld?
-I suspect we'll get sued the day that bill is signed.
Washington has twice the number of gun deaths of New Jersey,
three times that of Massachusetts.
Nine hundred and fifty people died by firearm violence
last year, about 70% of those were from suicides.
Gun violence, in particular,
suicides, is a real crisis in this state.
And I use New Jersey and Massachusetts
because those are, obviously,
Democratic blue states that also have very tough gun laws.
Something that we are doing is not enough.
The permit to purchase bill
has proven to show a real reduction in gun violence
of all types, both criminal violence and suicide deaths.
It is a really important bill.
It's the only bill that I testified on this session.
I believe thoroughly that that bill will save lives.
I also believe thoroughly that the NRA and
the Second Amendment Foundation here in Washington will sue.
And our Supreme Court has been --
our U.S. Supreme Court has been increasingly hostile
to gun litigation.
So I'm confident that that bill is good policy
and good law under current president,
but I am not as confident
that the Supreme Court will ultimately see it that way.
-Thank you.
I think we have one question here.
Did --
-Yeah, I actually have about a million questions,
but I'm going to stick with one.
One of the bills that is floating around
that's been approved by the House and it's going to
the Senate, which is of great concern, is the SAVE Act.
And I'm sure you're very familiar with it and,
particularly, the fact that probably many, many,
many women will not be able to register to vote or reregister
because their names are not consistent with their names
on their birth certificate.
So it's clearly a way of undermining
the Nineteenth Amendment.
Do you see the SAVE act in the same way
that you see the president's overreach on his executive order
relative to voting
and that it will take litigation if that's passed by the Senate
because he will certainly sign it?
-I see them sort of similar in substance.
In my mind,
the genesis of both the president's executive order
and the SAVE Act is because they want less people to vote.
So I think the motivation is generally the same.
The legal issues are going to be different.
You know, if Congress passes a federal law
and the president signs it,
it is much more grounded in authority than a simple --
because executive actions aren't laws,
they're not court decisions, they're not statutes.
You know, a president has a lot of authority
over Executive Branch agencies,
but they're not laws.
You know?
And every time I hear people say,
"Well, you know, the president made DEI illegal,"
like, no, he didn't.
It's still very much legal in Washington, in the country.
So I -- you know, if that becomes law,
whether a state would have standing to sue,
whether we would be successful,
like I feel very confident in our ability
to oppose the Trump executive order around voting.
Whether Congress passes a law,
that's the beginning of a different matter.
I'm sure it'll be challenged, maybe by states,
maybe by including Washington.
And we will obviously take a very, very close look at it
if it does become law.
And I'm not sure if it's going to get through the Senate,
but we're watching.
-So I want to thank you all for being here.
I want to thank you, Nick Brown, for your time.
Good afternoon.
♪♪