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The Politician v. The Judge: Maryland’s Primary

The two leading contenders for Maryland AG come from very different backgrounds: Anthony Brown is a past Maryland Lieutenant Governor, Congressman and long-time politician. Katie O’Malley, while she comes from a storied political family, has built her career as a District Court Judge in Baltimore City. In this week’s podcast, host Bernie and his State AG Group colleagues Milton Marquis and Chris Allen debate what this means for their election prospects and the future of the Maryland AG’s office.

PRODUCED IN COLLABORATION WITH:

Chris Allen, Member, Executive Producer

Gianna Puccinelli, Associate

Suzette Bradbury, Director of Practice Group Marketing (State AG Group)

Elisabeth Hill Hodish, Policy Analyst

Legal Internet Solutions Incorporated

Transcript

Bernie:

Welcome everyone to Cozen O’Connor’s State AG Pulse. This is our eighth episode, hard to believe it’s number eight already, but it is, and we will be focusing on the Maryland state AG’s election in just a moment or two. You’ll all recall that last week we had a major discussion regarding the District of Columbia race. We talked a lot about Karl Racine, the first elected AG in the District of Columbia. And the DC race, in my mind, is a race that is too tight to call. So I have not called it, and I will not call it for at least another month.

Bernie:

But we’re going to roll right into the great state of Maryland, a close neighbor of the District of Columbia, where we have a very, very interesting race coming up. We basically have Anthony Brown, again, in the primary against Katie O’Malley. To me, the irony of that is Anthony Brown was lieutenant governor for eight years under Martin O’Malley when Martin was governor. Katie O’Malley is now running against her husband’s former lieutenant governor in a one-on-one primary. And Katie is the daughter of a good friend of mine, and a good friend of my colleagues, Joe Curran, Joe Curran was Attorney General of Maryland for four consecutive terms aggregating 16 years. I find that very, very interesting. There are, of course, two Republicans running and we’ll talk about them in a moment. I think they have as much chance as I do, and I’m not on the ballot, of winning. So with that, I’ll introduce my colleagues for today’s podcast, and my dear friend and good partner, Milton Marquis. Hello, Milton.

Milton:

Hello. Good to be here.

Bernie:

Thank you, Milton. And Chris Allen, who you had the pleasure of hearing before on one of our earlier podcasts.

Chris:

Thanks for having me back, Bernie.

Bernie:

Anytime. So with that, Milton, maybe you can start us off by kind of giving a little more in-depth assessment of the candidates. I was a little glib in my characterization, but there’s a lot of substance to each of them. And, perhaps, you can provide that for our audience.

Milton:

Well, certainly, you have identified correctly what everyone believes to be the two leading candidates, the two Democratic candidates, Anthony Brown and Katie O’Malley. Prior to being tapped by Martin O’Malley to be his running mate, O’Malley’s running mate, Anthony Brown served in the legislature. He was served in a district that was, I think, completely within Prince George’s County. And for those folks who were outside of the DMV, as we call it, the District, Maryland and Virginia, Prince George’s County, it’s probably the second largest County in terms of population. It’s a very large County, it’s probably 85, maybe 90%, I may be low-balling a bit, Democratic. So it’s a very large pool of Democratic votes. And so he was in the legislature. And prior to that, he served in the military, I think, for over 30 years. He achieved the rank of colonel in the US Army Reserves and was a JAG officer. So he has a very interesting background. I think he went to Harvard Law School. So, very well-credentialed, very experienced person, and really added some balance in Maryland. So, he checked a lot of boxes and was a very high profile lieutenant governor. Now, Katie O’Malley-

Bernie:

Now, let me interrupt you for a moment, Milton. You forgot to add that he ran for governor and lost. He beat former Attorney General Doug Gansler in the Democratic primary for the privilege of running. And now, he probably feels if he becomes attorney general, he can then run for governor again. But that’s just my view. But I did not mean to interrupt you Milton, but I like that.

Milton:

That’s correct. So, he was unsuccessful. While Maryland is a blue state, I think Biden carried Maryland by 30 percentage points, and Hillary Clinton, and Barack Obama. But Maryland has elected Republican governors. And so, Larry Hogan is the current governor finishing out his second term, the term limits in Maryland for governor. And Anthony Brown lost by I think, 2 or 3 percentage points in that race. Prior to Governor O’Malley serving two terms, there was a Republican governor who Governor O’Malley defeated. So, out of the last five or so gubernatorial races, I think, Republicans have won three of them. So, while a blue state, it is not unusual for Maryland to have Republican governors.

Chris:

Republican governors, Milton, not attorneys general though.

Milton:

Now, that is true. I don’t think in the modern history, maybe you go back to 1950, I wasn’t around back then. If I were being sarcastic, I would ask Bernie and say, hey, back in the… Who was the last Republican Maryland attorney general.? So, it’s been primarily Democratic attorneys general and every expectation that Anthony Brown or Katie O’Malley, whoever wins the primary, will be elected attorney general. I think there’s no doubt about that. Now, Katie O’Malley has been on the bench for the past 20 years. She just retired and is running for attorney general as we’ve discussed. So she has a career as a judge, which should serve her very well as attorney general. She was the judge in district court in Baltimore City. And kind of gives you, not that I’ve ever been a judge or ever aspired to be a judge, but that kind of gives you a pretty front row seat, particularly in district court of kind of the issues, particularly in a city like Baltimore, that an attorney general would be facing in terms of crime, even though in Maryland, the attorney general has very limited prosecutorial authority, but handles all appeals. But you have a bully pulpit when you’re attorney general, to address issues that are of concern to people. So, I think that in addition to their kind of history, their electoral history being different in that Anthony Brown has been in the legislature, lieutenant governor and, for the past two terms, he’s been a member of Congress and representing Prince George’s County primarily. But they have different legal backgrounds as well, which would give them different perspectives, if one of them will be elected attorney general.

Chris:

I’m curious to follow up on that last point, Milton, because as both of you know, AGs come from a variety of backgrounds, but it’s not uncommon to see a former congressman be an AG, a former lieutenant governor become an AG. I can only think right now of one sitting AG who was a former judge and that’s Ellen Rosenblum out in Oregon. What do you both see as what kind of strengths maybe a judge could bring to office, knowing that every single candidate’s different?

Milton:

Well, I think it’s a temperament that you have to have. And from all that we know of her, she does have a judicial temperament in that listening to both sides, having empathy, and making decisions based upon the law and the facts. Not saying that if you’re not a judge, you don’t have those qualities. But I think as a judge, particularly someone who’s been on the bench for as long as she’s been on the bench, you have to have patience, and you have to listen, and you listen to both sides, you read the briefs, that sort of thing. So, I think General Rosenblum has exhibited all of those qualities in her two terms as attorney general of Oregon, someone who is willing to listen.

Bernie:

Well, Chris, I can actually recall another sitting AG, Ashley Moody of Florida, who was a judge. And I think we can take some guidance from both Ellen and Ashley in that I think in the first few months in office, they were a bit reticent about meeting with outside attorneys who were representing a client that might be under investigation, or that, in fact, was under investigation. Looking at their role as a neutral, well, should I be talking to you without the prosecutor hearing what you say, and contradicting you, etcetera, etcetera. So, I think from Katie’s perspective, I think there’ll be a much more rapid acceptance of her role as AG is very different from that of a judge, primarily because she’s steeped in politics, and steeped in the Office of Attorney General, given her father’s 16 years as AG, and helping him on his campaigns, and being the first lady for eight years, always meeting Maryland businessman, and others who have an interest in what the governor’s doing, or going to do, or should be doing. And I actually talked to her a little bit about that. You were there Milton and you were there Chris as well when she was over at our office. And she indicated she felt very comfortable meeting with people, hearing everybody’s side of the story. But I do think there’ll be a little reticence at first, cause you’re acting in a very different role when you’re AG than as a judge.

Milton:

I’d like to just add one point about just how the Office of Attorney General has evolved. It’s always been a very important role, very important office for obvious reasons that you all have discussed on prior podcasts. But I think having someone of Congressman Brown’s stature give up a safe seat in Congress, I believe he’s a subcommittee chair, obviously he may not be chair if the House flips next year, as is expected. But he gave up a safe seat. So, I think that just kind of highlights the important role of the attorney general in Maryland in particular, but just the important role of attorney general, where a sitting member of Congress with some seniority, he’s not been there a long time, but he’s very favored in the leadership, to give up that seat and run for attorney general.

Chris:

I think that’s a fantastic point, Milton and I think you skipped over this part, but I think it’s worth going back to, is, the Maryland AG in particular, it’s a very large office with very, very experienced staff. And for a state with 6 million people, I think Maryland punches as hard as much larger states in terms of both their leadership roles on consumer protection matters, on data privacy matters, and not just leading their other states. They’re often members of the executive committee, but they bring their own cases too. They’re not afraid to use their own statutes. And I think that whoever it is, if it’s an Attorney General Brown or an Attorney General O’Malley, they’re taking the reins of an office that is really well respected, and looked at as a leader by other AGs and by staff in other offices too.

Milton:

Well, that’s right. And I go back, at least in the law, back to Steve Sachs who passed away very recently, and former Attorney General Sachs was credited for modernizing the Office of the Attorney General. Maryland was kind of a smallish Southern state. General Sachs, modernized that office, saw it as attorneys general in New York and California as the lawyer for the people as opposed to the governor’s lawyer, or the lawyer for the legislature. And so, he kind of fashioned an office that has a great deal of independence. The current attorney general has kind of continued that tradition of activism. And so, there’s that tradition of environmental activism, consumer protection, antitrust. And so, when I was at the DOJ, and when I was in Massachusetts AG’s office, and in Virginia worked a great deal with the Maryland staffers, some of whom are still there. So very high quality lawyers, very good leadership. And so, that’s going to give whoever is elected a very sound foundation.

Bernie:

I couldn’t agree with you more Milton. I mean, Maryland punches well above its weight to mimic what Chris said a minute or so ago. It’s got about 275 attorneys. It’s got a budget of about $40 million. And I would rank Maryland in the top 10 states in terms of consumer protection, antitrust, and civil rights leadership. They lead many multistates in all three of the areas. Their lawyering is high quality. And they’re tough as nails when it comes down to negotiating a resolution. So, whoever becomes the next AG will inherit a very high quality staff, a very aggressive staff. And, obviously, they will identify their own priorities, whatever their priorities are. And I am sure they’ll shift around the budget a bit. But I think the foundation that Steve Sachs started, of modernizing the office, will continue. When Katie was in our office a short time ago, we were talking about her priorities. She considers the environment a very high priority, and she plans to be seeking additional funds to fund an additional number of attorneys in that office. She also has a strong interest in criminal law, and juvenile law because of her tenure as a judge, and in believing about creative and diversionary practices. So, you don’t just identify a juvenile as a problem from the get go. She also plans to continue the antitrust and consumer protection leadership. But moving away from that, how do you see the race shaping up? How do you see the strength, and the different backgrounds of each playing out in the race?

Milton:

Well, I am not a political expert, but just as a voter in Maryland for the 20 something years I’ve lived in Maryland, I would think that Anthony Brown has pretty good chance of winning. And, again, not here to make predictions. I think Bernie that’s your job, you’re the predictor-in-chief here. I guess a couple of a couple of reasons. Number one, he’s been on a ballot for, I don’t know, the past 20-something years in Prince George’s County. So he’s been on the statewide ballot three times. And then when he ran for Congress, when Donna Edwards ran for the Senate she gave up, again, safe seat, run for the Senate, which is understandable. He ran and he had some very significant opponents and won handily. My recollection is he won maybe by 20 percentage points, something like that. So, he’s well known in an area of the state where you have a lot of Democratic votes. So, just name ID alone kind of gives him a pretty good chance of prevailing. Now, the O’Malley name is not unknown. Obviously, Katie O’Malley is very accomplished in her own right. But a lot of time for down-ballot races and, in Maryland, there are only three statewide elected offices: governor, lieutenant governor run together, so count that as one, the attorney general and comptroller, I think most people would have a hard time telling you what the comptroller does until they pay their taxes.

Chris:

I thought comptroller was a typo for many years.

Milton:

So, I guess comptroller sounds better than tax collector. But it’s still a down-ballot race. And there is a gubernatorial election this year, I think 10 or 15 candidates running Democrats. I think there are 2 or 3 on the Republican side. And they’re having trouble getting attention not because it’s just a whole lot of people, but I think in Maryland, because this is such a federally-focused electorate that people can tell you who the president is. They can probably name all the cabinet officers. But they can be hard pressed to tell you who the attorney general is. So it’s always hard to get people’s attention. So I think coming from Prince George’s County, which is the neighboring County to Montgomery County with a big population of Democratic votes, that he’s got to feel pretty good about his chances but then again, you just never know because the O’Malley name is certainly well known in Baltimore and throughout the state as well.

Bernie:

Katie’s going to be trying to draw a contrast between, for attorney general you need a great lawyer, you need someone who’s a practitioner, or a judge who knows the law. She’s going to be drawing, trying to at least draw a contrast between: do you want a politician to protect your rights and enforce the law? Or do you want a lawyer? I mean, I’m probably oversimplifying it. And the political gurus will write it in a more elegant way, but that’s how she’s going to try to position it if she has enough money. I know she’s desperately trying to raise money to get her message out.

Chris:

Yeah, I don’t have a whole lot to add to both of you ’cause I agree wholeheartedly. I think it is telling that when the Washington Post came out with its endorsement, it did give its endorsement to Katie O’Malley. And the message they echoed is exactly what you’re both saying, is: Anthony Brown is a very impressive politician, but Katie O’Malley brings just a different background, like we said earlier, than you often see running for AG. And so, the question is just how effective is she going to be at getting her message out, at distinguishing herself? And is there enough time in the run up to this primary for her to do that?

Milton:

And, again, I don’t want to overstate the importance of a Washington Post endorsement. Usually in most places, that means nothing. But I think in Maryland, it does mean something in that you have people who may not be following in a race, and you’re able to put on your yard signs, and your advertising: ”Endorsed by The Washington Post”. That could be significant for people who may start paying attention to the race maybe a week before the election. There is a high incidence of mail-in ballots now with the pandemic in Maryland, I think they’re counting on maybe half of all votes to be mail-in, which has not been the case historically in Maryland. And so, when you have a mail-in ballot, you’re kind of sitting at your table, you’re looking at information, you’re going online. That endorsement could be a tipping point for many voters who are not familiar with either candidate.

Chris:

Many Democrat voters.

Milton:

Oh, yes. That’s what I mean in the primary.

Bernie:

Yeah, this is a race I am not prepared to call on this podcast for those who are waiting for me to make my announcement in terms of the primary. I will call it, however, for the general. Whoever wins the Democratic primary will win the general. So, Milton, regardless of who the next attorney general will be, do you think there’ll be major changes in the office of attorney general? What should not only the great citizens of Maryland expect, but what should the business community within Maryland, as well as nationwide, since Maryland’s always been a leader in multistate investigations and multistate litigations, should the business community and the electorate think of any significant changes that might be made after November?

Milton:

I would say no. And I don’t think I’m going out on a limb. I don’t think there are going to be significant changes in the office, regardless of whether Congressman Brown or Judge O’Malley is elected. And that is because, well, a couple of reasons. Number one, they both campaigned on the continuity of the accomplishments of Attorney General Frosh. I think when they both announced their candidacy, they spent a great deal of time, rightfully so, complimenting General Frosh on his accomplishments and the team that he has put together. So, there’s not a tradition in that office – there haven’t been a lot of transitions – so, if you look to the Curran to Gansler transition, the Gansler to Frosh transition, there’s just not a history of incoming AGs making wholesale changes in the staff, number one. Number two, the policies and priorities of General Frosh line up very nicely with those of Judge O’Malley and Congressman Brown. So, I would expect that the senior staff, when I say senior staff not the front office that reports directly to the attorney general, but the section chiefs and line AAGs will remain in place. And they will get the same level of support regardless of who’s elected. You pointed out when Judge O’Malley was in our offices that she would like to place more of an emphasis on environmental. So, I think around the margins, there may be some, either shuffling of resources are going to a very heavily Democratic General Assembly, getting additional resources to help whoever’s elected place more of an emphasis on certain areas, not to the detriment of consumer protection and antitrust. So, I don’t think there’s going to be a change if either one of those folks are elected.

Bernie:

Yeah, I think before we draw it to a close, we owe it to our audience to talk about the two other gentlemen who are running. Republicans have a primary. It’s Michael Peroutka against Jim Shalleck. I think the Democrats are planning to spend about $1.5 million each, if not more, on their primary race. And at the moment, Jim Shalleck has $1,903 raised for his race. And Mr. Peroutka has about $16,961 raised. And, to me, interestingly Michael Peroutka was a candidate for president, I think on the Constitutional Party, if I have that right. His opponent Jim Shalleck retired, or resigned, as president of the Montgomery County Board of Elections to run for this office. And he was a former criminal prosecutor in the Bronx, New York. And he prosecuted, for those who are old enough to remember, the Son of Sam; guy’s name was David Berkowitz, the Son of Sam was just terrorizing New York. He then went on to DC to become a line attorney at the Antitrust Division where Milton served. So, I was wondering, Milton, did you run across Jim Shalleck when you were at DOJ?

Milton:

Jim Shalleck is a very accomplished lawyer. His reputation as a lawyer is stellar. You mentioned the Son of Sam, he was chief of the Homicide Bureau in the Bronx. You don’t have to be a Law & Order fan to know that’s a pretty substantial job to be Chief of Homicide in the Bronx, or any of the boroughs in New York. So, very accomplished. Again, I don’t want to turn this into Montgomery County lovefest here, but he’s Montgomery County resident. I think that he may have run for state’s attorney. But he has the misfortune for him, and for his electoral prospects, of being a Republican in a very, very blue… I mean, Montgomery County is an extremely Democratic stronghold. I would add, for Jim, that crime has become an increasingly important issue. And if he could raise money, and runs on a criminal justice platform, we’ve seen again the first week, I think of June 7th, primary in California, where in San Francisco the DA was recalled because of concern over crime. He was recalled by a pretty wide… A recall. Not failing to be reelected. I mean, actually removed from office in San Francisco, California over the crime issue. So, I imagine that Jim will win the Republican primary. And, again, it’s all about being able to raise your profile. He may do better than Republicans have historically done in attorney general elections, if, and that’s a big if, he can raise the money and really kind of promote his platform of being serious about crime. [You] find a lot of Democrats, and there are a lot of crossovers in Maryland, they just tend not to cross over in an attorney general race – might find a lot of Democrats that are receptive of that message.

Bernie:

Well, I hope you enjoyed this podcast and I hope you will join us again next week, where we will be interviewing Sean Rankin, the Executive Director of DAGA otherwise known as the Democratic Attorneys General Association. And Lori and I will be talking with Sean about trends that we now see since we are halfway through the primary season, and what his perception of the so-called red wave is. There clearly will be a red wave of sorts. Will it actually get down to the attorneys general level or not? Sean has strong views about that. And, hopefully, he’ll tell us about what his priorities are, which Democratic AGs he’s worried about and is planning to spend a lot of money to preserve those seats, and where he sees some red states where he can knock off a Republican attorney general or two. So, I hope you will join us next week, and we will interview Sean. And until then, have a very good day and a great week ahead of you. And thank you.

Bernie:

You have been listening to the State AG Pulse brought to you by Cozen O’Connor’s State AG Group. Research for the podcast is provided by four of our crack associates, who I need to recognize for their hard work. Ryan Bottegal, Hannah Cornett, Gianna Puccinelli and Keturah Taylor. And, of course, our policy analyst and travelogue guru Elizabeth Hill Hodish. If you enjoyed this week’s episode, please leave a five star rating and review. Please tune in again next week. And until then, bye-bye.

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