The BDN Opinion section operates independently and does not set newsroom policies or contribute to reporting or editing articles elsewhere in the newspaper or on bangordailynews.com.
Michael Cianchette is a Navy reservist who served in Afghanistan. He is in-house counsel to a number of businesses in southern Maine and was a chief counsel to former Gov. Paul LePage.
It is Easter season. A good time to remember one Pope’s maxim: “To err is human. To forgive, divine.”
Maine Attorney General Aaron Frey and Supreme Court Justice Clarence Thomas both screwed up. So we’ve successfully established they are human. What will our response be?
Justice Thomas’ mistake is governed by a law. The first question is whether his failure to report certain gifts from longtime friends was “willful and knowing.” The evidence to date doesn’t seem like it; he disclosed similar gifts back in the early 2000s and the Los Angeles Times reported on them.
So why did he stop? He says he received guidance from colleagues that those types of gifts were not subject to the reporting requirement. It isn’t outlandish, as the law explicitly calls out that “any food, lodging, or entertainment received as personal hospitality of an individual need not be reported.”
Maybe Thomas got it wrong. It would not be the first time that he was accused of incorrectly interpreting the law. The left has made that claim incessantly throughout his tenure on the Supreme Court.
Or maybe Thomas is correct and it is just a strange exception in the law that Congress should change. Like the famous “Tuck Rule” that helped propel the Patriots to a Super Bowl, just because a rule is dumb does not mean it is inapplicable.
But even assuming the absolute worst, the penalty for willfully failing to report information is a civil action leading to a fine. Removing a justice requires impeachment by Congress. That is an inherently political process yet is supposed to stem from “high crimes and misdemeanors.”
Meanwhile, Attorney General Frey plainly violated a commonly held social rule: You do not have secret relationships with your employees. There seems to be debate about whether or not certain executive branch policies apply to the attorney general. If the rules apply, he violated them. If they don’t, he only violated common sense. The confusion stems from our peculiar way of electing the state’s top lawyer.
For the time being, the Maine Legislature elects the attorney general every two years. However, let’s be clear: the attorney general is essentially an officer of the executive branch. The Maine Constitution is unequivocal saying there are only three “departments” of our government: legislative, executive, and judicial.
The attorney general is not a lawmaker, so he isn’t in the “legislative” department. He does not adjudicate disputes about the law, so he isn’t in the “judicial” department. Instead, as is often said, he is the “top law enforcement officer” in the state. “Enforcement” means executive.
The Constitution also states “the supreme executive power of this State shall be vested in a Governor.” So if the governor is “supreme,” the attorney general is “subordinate.”
That’s all well and good. But, as often the case in legal land, the question is what remedy exists. That is where things are different.
With most senior positions in the executive branch, people serve “at the pleasure” of the governor. If the governor is displeased, they can lose their job. Violating policies about sleeping with subordinates is a good way to draw the ire of any governor.
But the attorney general can only be removed by the Legislature. The governor can start the process, but that is where her power ends. So even if Frey violates every executive branch rule, Gov. Janet Mills’ remedy is severely limited despite her “supreme executive power.”
Both Thomas and Frey screwed up. The only real remedy is impeachment.
Yet neither will be impeached, nor should they. While forgiveness may be a bridge too far for the time being, there is something heartening watching two public figures openly acknowledge their mistakes. They are mere humans after all.
