By John Krull
INDIANAPOLIS—When he was a small boy, Indiana Attorney General Todd Rokita must have been the kind of kid who had to touch a hot stove multiple times before he figured out it burned.
Time and age haven’t taught him much.
The Indiana Supreme Court just rejected—for the second time—Rokita’s attempt to keep a lawsuit filed by Indiana Gov. Eric Holcomb from moving forward. Holcomb sued the Indiana General Assembly for overriding his veto of a bill that violates the Indiana constitution by granting lawmakers the power to call the legislature back into session.
The constitution clearly says only the governor may call the legislature into session.
The legislators who pushed the bill like to call themselves small-government constitutional purists, but their principles end where their prejudices begin. They were angry that Holcomb wouldn’t go along with their fantasy that the coronavirus pandemic wasn’t really a problem, so they decided to treat the state’s fundamental charter like a piece of soiled tissue.
Rokita—who is always eager to pander to the “ignorance-is-a-virtue” crowd—lined up with the lawmakers.
He argued, nonsensically, that the governor couldn’t hire outside counsel without his permission. That he could represent both parties in the dispute. That he also could assume the court’s role and serve as arbiter.
The response of the courts at every level has been savage.
From the trial court to the state’s highest court, judges and justices haven’t said that Rokita’s arguments were misguided, mistaken or even just plain wrong.
They have said that the arguments were absurd.
That’s because they are absurd.
Let’s first consider this from the context of principle.
Any reputable law firm conducts a conflict-of-interest search before agreeing to represent a new client in a dispute. That search seeks to determine if the firm or any of its attorneys have represented in any way the opposing party or parties in the conflict.
If the firm has, then it can’t represent this new client in the dispute.
At different times, Indiana’s attorney general has represented the governor and the state legislature when each has been sued. When the two branches of government fall into a constitutional dispute, the notion that the attorney general doesn’t have a conflict of interest is … well, absurd.
As a matter of principle, Rokita should have sat this one out.
But there’s also the question of practicality.
When Rokita’s feckless determination to insert himself into the battle between governor and legislature popped up, I filed a Freedom of Information Act request for records on the number of times the attorney general’s office has paid for outside legal counsel in recent years.
When they came, the results of the request were revealing.
Between 2015 and now, the state of Indiana has hired outside counsel at least 45 different times. Each time, the attorney general has approved the hiring.
And the spending.
The price tag thus far for these hired lawyers comes to nearly $37.5 million.
That’s not a small number, but it needs to be considered in its proper context.
Sometimes the state secures outside counsel because the case is a complicated one that requires specialized legal knowledge. Other times, the state brings in private lawyers because doing so is more cost-effective than hiring lawyers permanently and full-time to deal with the matter.
And sometimes the state does so because there is a conflict of interest involved.
The point is that the state’s lawyer—the attorney general—should do what is in the state’s best interest.
In this case, what is in the state’s best interest involves honoring the constitution and determining as quickly as possible which branch of government—the executive branch or the legislative branch—is right in this dispute.
The best way to do that would be to get Todd Rokita out of the way.
That’s what the courts have tried to tell our attorney general now on several occasions.
But that’s Todd Rokita.
He sees a hot stove and he just has to reach out and touch it.
Because he’s thinking, maybe, just maybe, this time he won’t get burned.
John Krull is director of Franklin College’s Pulliam School of Journalism and publisher of TheStatehouseFile.com, a news website powered by Franklin College journalism students.