The Threat Trump Never Saw Coming
As the Democratic Party
remains mired in its own existential crisis, the resistance to Donald
Trump is being led, in part, by an unlikely group of attorneys
general—starting with Maura Healey.
The morning after Donald Trump was sworn in on the Capitol steps, Massachusetts Attorney General Maura Healey looked out over a massive crowd of her own. Some 175,000 demonstrators had gathered on the Boston Common to protest the new president, and Healey—flanked by Massachusetts senators Elizabeth Warren and Ed Markey—was prepared to stir their fervor. She vowed to fight the administration on topics ranging from women’s issues to corporate interests, and declared an unequivocal warning to the famously litigious new president. “The message from the people of Massachusetts is: We’ll see you in court,” Healey said.
The Democratic prosecutor got the fight she was looking for faster than she could have possibly fathomed. On January 31, Healey joined
attorneys general from three other states to sue the U.S. government
after the Trump administration closed America’s borders to refugees and
non-U.S. citizens from seven predominantly Muslim countries. The suit,
of course, followed days of chaos, as airports around the country
descended into disarray. In a matter of hours, hundreds of people,
including green-card holders, had been detained, pulled off flights, or
separated from their families. The Department of Homeland Security,
which was only marginally involved in the drafting and rollout of the
plan, scrambled to figure out what the changes meant. Thousands of
protesters stormed J.F.K., LAX, Dulles, and other international airports
as a small army of lawyers were deployed to arrival terminals to offer
pro-bono legal advice to immigrants and families ensnared in Trump’s
dragnet.
As Boston's
Logan International Airport became a flash point of the country’s latest
culture war, Healey’s office was among the first to get involved. Two
days after Trump signed the order, she issued, on a Sunday, a joint statement with 16 other attorneys general condemning the White House directive. Two days later, she joined a federal lawsuit
filed by the American Civil Liberties Union, which challenged the E.O.
on the grounds that it was a religious test. “The president’s executive
order is a threat to our Constitution. Rather than protecting our
national security, it stigmatizes those who would lawfully emigrate to
our state,” Healey said in in a statement.
“The [Trump] administration has embarrassed and endangered our country.
On behalf of the Commonwealth, my office is filing intervention papers
to challenge the immigration ban and hold this administration
accountable for its un-American, discriminatory, and reckless
decision-making.”
Healey
didn't mince words when I asked her how she sees her job amid the new
reality of the Trump administration. “We need to stand up for the rule
of the law,” she said. “And if the administration attempts to carry out
unconstitutional campaign promises, we need to be there to take that
on.” Indeed, attorneys general are often among the first line of defense
against abuses by the federal government, and Healey indicated that if
the new administration took steps to curtail environmental or financial
regulations, anti-trust and labor laws, or moves forward with a number
of the controversial—and in some cases, unconstitutional—policies that
Trump pitched on the campaign trail, her office would be prepared to hit
President Trump with a fusillade of legal attacks.
Less
than a month into office, Healey’s warning is already being tested. The
Democratic Party has been rendered largely inert and anemic after a
string of disappointing midterm and general elections during the Obama
era. In the wake of Trump’s surprising victory, it has appeared somewhat
rudderless as it grapples with its own internal Tea Party moment while
endeavoring to thwart Republican momentum on Capitol Hill. Into this
vacuum, the courts have emerged as ground zero for the Trump
resistance—as demonstrated by Thursday’s Ninth Circuit U.S. Court of
Appeals ruling. Borne of necessity, attorneys general like Healey and judges like James Robart have emerged as, arguably, the most effective adversaries of Trumpism.
Upon
entering office, Trump presented A.G.s with a uniquely vexing
challenge. On the stump, he offered disaffected American voters a potent
combination of xenophobic, populist and “politically incorrect”
rhetoric but little in the way of concrete policy or ideological
moorings, all of which rendered him a blank slate, of sorts. But a
number of potent intimations on his agenda were revealed during his
transition, as Trump increasingly surrounded himself with immigration hard-liners, K-street operatives, and .001 percenters. Meanwhile, he stocked his Cabinet with controversial appointees such as Andrew Puzder as secretary of the Department of Labor, Scott Pruitt as head of the Environmental Protection Agency, and Jeff Sessions
as United States attorney general. “One thing about Trump is that he is
unpredictable, but certainly personnel is policy. He is putting in
place people that really are at odds—and in some cases fundamentally at
odds—with the purposes of their agencies,” Eric Schneiderman, the New York State Attorney General, whose office also joined the A.C.L.U.’s fight
against Trump’s immigration order, told me recently. “These are things
that we take as an indication that they are not backing off from some of
the extreme positions that they took on the campaign trail.”
In the short time that he has held the Oval Office, Trump has already started to unwind Barack Obama’s legacy. Within three days of taking the oath of office, the new president blocked
an Obama administration policy that would have reduced the cost of
Federal Housing Agency-backed mortgages for millions of low-income
Americans; signed a sweeping (albeit vague) executive order allowing federal agencies to “ease the burden of Obamacare” to the “maximum extent permitted by the law;” withdrew from
the Trans-Pacific Partnership; reinstated the “Mexico City Policy,”
which bars funding to international nongovernmental organizations that
perform or even discuss abortion; and instituted a federal hiring
freeze. In addition, as the official White House Web site transitioned
from the Obama to the Trump administration, it omitted any mention of
“climate change,” and the government pages about the L.G.B.T. community
and health care disappeared. Then, of course, Trump capped off his first
week in office with the signing of the controversial executive action
on immigration.
To
some extent, Democratic attorneys general will borrow from the playbook
that their conservative counterparts created during the Obama
administration. As President Obama combatted an uncompromising Congress
on Capitol Hill for much of his time in office, he was simultaneously
fighting a protracted battle on another front. Republican attorneys
general from states including Arizona, Nevada, Virginia, Texas,
Oklahoma, and Florida made suing the federal government something of an
avocation over the past eight years, taking the administration to court
over a range of issues from health care to labor laws to environmental
regulations.
Their Democratic colleagues are now poised to do the same. But unlike Texas attorney general Greg Abbott, who famously declared in 2013,
“I go into the office, I sue the federal government, and I go home,”
Healey doesn’t seem to relish the thought of taking Trump to court—even
if she is prepared to do so. “I certainly don’t wake up every day
looking forward to an opportunity to sue a Trump administration or to
sue the federal government,” she told me. “I nevertheless will stand at
the ready to make sure that we are enforcing the law to protect the
interests of Massachusetts and the people that live here.”
Being
a voluble, vociferous attorney general, however, isn't without its
benefits. Schneiderman, whose office brought a class-action against
Trump University, the president’s now defunct real-estate training
company, negotiated a $25 million settlement at the end of last year and
is now rumored to be considering a gubernatorial bid in 2018. (Eliot Spitzer
followed a similar path a decade ago, before succumbing to scandal.)
Healey, the first openly gay attorney general, is herself a rising star
among political progressives and has been floated as a potential challenger to Massachusetts governor Charlie Baker.
“There are a lot of tools in our constitutional tool box, it is just
about having enough state A.G.s with the foresight and the courage to
take these fights on,” Schneiderman told me during an interview, before
adding, “Maura has proven to be an A.G. that is not gun shy.”
Healey
may have been a first-time political candidate when she was elected
attorney general in 2014, but she was far from a neophyte. For the seven
years prior to her campaign, Healey worked under her predecessor, Martha Coakley,
and, while serving as head of the Civil Rights Division, was the
architect of the successful challenge to the federal government’s
Defense of Marriage Act, which she argued in federal court. Widely seen
as the underdog in the election—which Adrienne Kimmel,
the executive director of the Barbara Lee Foundation, a group that
studies female campaigns, characterized as “a race against the old boys
club in a lot of ways”—Healey beat her opponent John Miller in a landslide, securing over 62 percent
of the vote.
When I asked whether she thought her status as a
first-term attorney general hindered her agenda, Healey dismissed the
impact. “I don’t have a playbook for this. You’re right, I haven’t been
in politics for many years, I haven’t held other offices before, but I
am just going on what feels right to me, my experience and my
judgement,” she said.
In
her short time in office, Healey has pushed an aggressively liberal
agenda. She has tackled such issues as student loans and for-profit
colleges, workers’ and women’s rights, sexual assault, the opioid
epidemic, and was instrumental in getting a transgender public accommodations
law passed. But it has been the fierce battles with large lobbies and
corporate interests that have amplified her profile and arguably
prepared her to take on Trump. “It is very easy for a lot of the big
players and a lot of the big corporate interests to have and to hire all
the lawyers in the world to advocate for them, to hire lobbyists to
spend time in state legislatures and in Congress,” Healey explained. “It
is really important that every day real people have somebody out there,
looking after them, looking after their families and that is how I see
my role.”
Like
Schneiderman, Healey has developed a reputation as an activist attorney
general. Together, the New York and Massachusetts attorneys general launched a fraud investigation into whether ExxonMobil—whose former C.E.O. Rex Tillerson
is Trump’s recently confirmed secretary of state—misled investors about
the impact of fossil fuels on the environment. (The lawsuit prompted
ExxonMobil to file a series of countersuits against Healey and
Schneiderman. In a statement to Vanity Fair, spokesperson Alan Jeffers
said, “We are pushing back on the investigations because we feel that
the investigations themselves are politically motivated, in bad faith
and don’t have any legal merit.”) Healey has also launched a series of
broadsides against the Massachusetts gun lobby. In addition to investigating two gun manufacturers over potential safety issues, her office most notably moved to enforce an existing Massachusetts assault weapons ban
last July when it closed a loophole that allowed the sale of “copycat”
and “duplicate” weapons. The move has drawn the ire of gun-rights
advocates and on January 23, the Massachusetts chapter of the National
Rifle Association sued Healey and Governor Baker over the assault weapons enforcement. (Jim Wallace, the executive director of the Gun Owners Action League, which brought the suit, said, in a statement to Vanity Fair, that the organization was unable to comment on pending litigation).
Healey’s efforts have drawn the praise of former Arizona Congresswoman Gabrielle Giffords,
a powerful advocate for gun control, who was badly injured during a
2011 shooting that killed six people. Giffords e-mailed me that the
people of Massachusetts are “lucky” to have Healey, who Giffords said
“will always put their safety ahead of the corporate gun lobby, and
never stop fighting for them.” In an e-mail, Senator Warren echoed
Gifford’s sentiment, characterizing Healey as “a tough, smart fearless
woman who knows how to get things done.” She continued: “Powerful
interests who think they can push her around still haven’t learned their
lesson: Maura isn’t just Massachusetts’s lawyer, she’s the people’s
lawyer—and she is not afraid of anyone.” Including, it seems, Donald
Trump.
When I asked Healey about criticism
that she has overstepped her authority in the pursuit of her
progressive agenda, she replied candidly. “I think there are some people
that just don’t like what we are doing, that maybe disagree as a matter
of policy. That is O.K., they will take their knocks, that’s O.K. There
are some people that don’t understand the authority of the office,” she
said. “But I know that if we are going to take action and be an office
that is about action, we are not going to please everybody all of the
time, and that is O.K.”
Healey
hastened to position herself as an opposition force to the new
Republican administration. But with Democrats busy assigning blame for
Clinton’s unexpected loss and the party's enduring failure to coalesce
around a clear objective or message, the role of Healey and other state
attorneys general has taken on an unrivaled eminence. “I think that the
concept is that the more that the Trump administration pulls back from
regulation and enforcing our laws . . . the more you will see, going
forward, state attorneys general filling that vacuum,” Doug Gansler,
a former Maryland attorney general and former president of the National
Associations of Attorneys General, told me. “And Maura Healey will be a
leader in doing just that.”
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