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Thankful McDaniel's Tenure Is Ending

Updated: Apr 13

Yesterday, as I celebrated Thanksgiving with family and friends, I realized how much I have to be thankful for. I am thankful for the blessings of liberty, for the love and the company of my wife and children, for the peace and prosperity that many Americans enjoy, and for the luck and the privilege of living in a republic that often does a pretty darn good job of adhering to the rule of law. It is easy to identify problems in America in 2014; those problems sometimes obscure the extraordinary good fortune that we Americans enjoy as a matter of course. But I should add that I am thankful for one more piece of good fortune for Arkansans and Americans: As of 2015, Arkansas government will be free of Dustin McDaniel. And for this, I am very thankful. I don’t know that McDaniel made any one large mistake as attorney general that overshadows the rest of them – at least in his public conduct. But his tenure as the state’s top lawyer was packed with one embarrassment after another. It wasn’t so much that he had a second-rate legal mind. It was the bluster and arrogance that he inevitably folded into his careless and impulsive legal judgments. There were plenty of lawyers who (wrongly) thought that the constitutional case against Obamacare was weak, but it took an outlier like McDaniel to explain that the constitutional arguments against Obamacare were “frivolous.” That means he thought that nobody in good faith could argue that Obamacare was unconstitutional; the Supremes disagreed, 7-2, finding that the Medicaid expansion that the law had commanded was illegal. I often suspected that McDaniel’s legal judgments had more to do with partisanship than principle. I still don’t know why McDaniel resisted – for, literally, years – public-interest proposals to expands Arkansans’ open-records rights, so that citizens could be better-informed about those around us with criminal records. Maybe there was a good reason for him to resist open-records reforms, but his counter-argument that we needed to “protect the privacy” of criminals’ public records was nothing but gibberish. A few years ago, McDaniel produced his own public-records transparency proposal; for some reason, it incorporated a bizarre scheme that involved requiring every political candidate in the state to fund his or her own criminal background check and then to store the data from that collection of background checks under seal, accessible only to (for some reason) the office of the attorney general. State Rep. Nate Bell (who, God bless him, isn’t a lawyer) had to publicly explain in committee to McDaniel that this Rube Goldbergian proposal was unconstitutional, because it would have required every county clerk in the state to make complex legal judgments that would have encroached on every Arkansans’ constitutional right to run for office. My suspicion about McDaniel’s Democratic partisanship was burnished shortly after he told the media that it was a “serious mistake” for Republican Secretary of State Mark Martin to hire outside legal counsel to assist his office – even though, a few years earlier, McDaniel’s own staff had released a memo explaining that other state agencies could hire their own lawyers. When giving his opinion on legal matters, there’s reason to believe that McDaniel was willing to contradict the methods and the substance of opinions he had provided previously – as long as McDaniel was therefore able to reach the result he favored. McDaniel was careless about what Lou Holtz called the “do right rule,” too. The settlement funds McDaniel had access to were supposed to be spent to benefit the class of people whose plight justified the original lawsuit: too often, McDaniel did things like misrepresent the court orders he was supposed to follow, produce self-promotional videos costing thousands of dollars with public money, and funnel $140,000 of public money to a charity run, in part, by his wife. McDaniel also confessed two years ago to an “inappropriate … interaction” with a Hot Springs lawyer, Andi Davis, and it’s reasonable to interpret that language as code for “extramarital affair”; he gets some blame for that, although it’s really not fair to blame him for the manslaughter charge Davis is currently facing, which, according to law enforcement authorities, arose out of a drug deal gone wrong. Bad judgment in your affections plus bad luck in their object is a dangerous mix, though. One of the reasons it’s been hard to like McDaniel is that the guy can’t even lie convincingly. I remember when he explained that it would just be a waste of time and resources for his office to sign onto the amicus brief to the Supreme Court that other attorneys general had produced that questioned the constitutionality of Obamacare; after all, he explained, one more signature wouldn’t make any difference. I remember thinking that even someone not very bright could come up with a better argument than that. (McDaniel was, of course, willing to affix his signature to all manner of pointless statements, such as a vaguely threatening letter to a novelty coffee-cup manufacturer whose products resembled prescription medicine containers. That letter stated “We invite you to pull these products from your shelves”; I always thought the proper response from the manufacturer would have been “I invite you characters to think what the First Amendment means, rather than reminding me about your prosecutorial experience while explaining to me that you don’t find my products funny.”) Remarkably, just a few weeks ago, I saw his signature on a different Obamacare amicus brief, along with that of a few other Democratic AGs, urging the Supreme Court to take the government’s side in King v. Burwell, the newest Obamacare case. Maybe this new Obamacare case, unlike the old Obamacare case, was just really important to him. McDaniel’s most disgraceful act occurred just a few months ago, when he appeared before the state legislature’s claims committee to argue against compensating Gyronne Buckley. Buckley had served 11 years behind bars because of a corrupt cop and a rigged trial, one which the state Supreme Court eventually overturned. In this context, perhaps it’s best just to repeat what we wrote about McDaniel just a few months ago:

After the state Claims Commission voted unanimously to award Buckley $430,000 for the miscarriage of justice he suffered, Attorney General Dustin McDaniel announced that he would oppose that decision when it came time for the state legislature to approve it. At the state legislative committee, McDaniel alleged that Buckley was a career criminal, saying “Gyronne Buckley was a crack dealer in Arkadelphia. He had a long criminal history and he sold crack cocaine to undercover informants repeatedly.” McDaniel also called Buckley “a general bad guy.” Such reckless rhetoric is indefensible: Buckley was the victim of a rigged trial, and the single conviction which resulted from it was reversed by the Supreme Court and expunged. Buckley has no criminal record, with the exception of one fight in high school. McDaniel repeatedly made baseless assertions about Buckley’s criminal history; when we asked if he had any evidence for such charges, he declined to provide them. A competent and conscientious public servant would never have made the charges that McDaniel made to the legislative committee.

McDaniel’s behavior in that case was disgraceful. He didn’t just manufacture crimes that Buckley never committed while speaking to the legislators charged to produce a verdict; he also manufactured statements that Buckley never made in the course of misrepresenting Buckley’s circumstances. When McDaniel was caught in the act of misrepresentation, he responded “I was quoting Mr. Buckley, though I did misquote him.” Of course, it is important to note that McDaniel publicly conceded that he misrepresented the facts to the compensation committee only after he successfully misled that committee into denying compensation. Dustin McDaniel’s public tenure, in short, has been a horror. I am quite thankful that his tenure as a public official is approaching its end. In a recent interview, he said he likely wouldn’t run for office for “at least a decade.” I’ll be even more thankful if the response of the voters is “I’ll see you and raise you.”

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