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With Reyes under scrutiny, is appointing Utah’s attorney general the answer?

Utah Attorney General Sean Reyes walks on stage to tape his speech for the fourth day of the Republican National Convention from the Andrew W. Mellon Auditorium in Washington, Thursday, Aug. 27, 2020.
Susan Walsh
Utah Attorney General Sean Reyes walks on stage to tape his speech for the fourth day of the Republican National Convention from the Andrew W. Mellon Auditorium in Washington, Thursday, Aug. 27, 2020.

The last three elected Utah Attorneys General have been involved in some kind of scandal. In response, Republican state Sen. Mike McKell is mulling legislation that would switch the job from an elected position to an appointed one.

Former officeholders John Swallow and Mark Shurtleff were investigated by the FBI over fraud claims. Most recently, Attorney General Sean Reyes has been in hot water over his ties to Tim Ballard, the founder and former CEO of Operation Underground Railroad. Ballard has been accused of sexual misconduct and fraud while working at the anti-human trafficking organization. A lawsuit brought against Ballard accuses Reyes of witness tampering on behalf of Ballard.

The connection also prompted the Legislature to approve an audit of the attorney general’s office. Reyes told reporters earlier in November that his office welcomes the audit and that it will find “no smoking gun.” The audit could take up to a year to complete.

McKell said he is still working on the legislation and “it’s entirely possible” he’ll wait until the audit is finished before releasing a public draft. Ideally, McKell said, the governor would appoint the attorney general and the Senate would confirm the nomination. That’s the current model used for judges.

Pointing to past dramas, Democratic state Rep. Andrew Stoddard called the proposal to appoint an attorney general “fantastic” because “it’s a position that has become partisan unnecessarily.”

“When you have three elected officials in a row dealing with corruption issues and misuse of their elected position, we've got to try something different because what we've got going now isn’t working,” he said.

There are pros and cons to either option, said Matthew Burbank, a political science professor at The University of Utah. When the state’s top attorney is elected, Burbank said, it involves voters in the process and signals they’re a representative of the people – not the person appointing them.

“It does give them some independent standing,” he said.

But since it’s a partisan race in Utah, Burbank said voters often select the candidate that matches their political affiliation, so partisanship plays a key role in who is elected.

He believes nationwide, the office has gotten increasingly political over the years. Instead of focusing on litigation in the best interest of the state, attorneys general have been inserting themselves into political battles. Reyes, he said, has been “much more willing to weigh into political conflicts.” Following the 2020 presidential election, for example, Reyes traveled to Nevada to help investigate claims of election fraud brought forth by former President Donald Trump.

The benefit of making the job an appointment, Burbank said, is better information about the potential candidates. If someone like the governor picks the top legal official, Burbank said “they're going to do a lot of background checking” to make sure they're a qualified individual. The appointee would also most likely have to be confirmed by the Legislature.

Burbank added there would also be faster accountability. Instead of waiting for the next election, the governor could fire and choose someone else on an accelerated timeline.

The downside, Burbank said, is the position could turn into someone focused on the administration's priorities and not the state’s needs.

“They're sort of seen as no longer representing the state, no longer representing the people, but now representing whoever appointed them. And so they're representing the governor,” he said. “The attorney general is not there to represent the governor.”

Reyes concurs and is against the appointment route. In a statement to KUER, his office said “appointed AGs can’t exercise independent discretion or decision making, and they become just an extension of the governor or whomever appoints them.”

To Stoddard, having the attorney general be an appointed position allows the lead lawyer in the state to focus more on the job and less on campaigning for reelection.

“The issue, especially with the attorney general, is you've got someone who represents the entire state as a client and you're injecting fundraising and a whole bunch of other issues that come into it that deal with whatever your party is,” he said.

Burbank and Stoddard both agree that partisanship would still influence the decision under an appointment model. In a GOP-led state, Stoddard said that’s hard to escape. But he reiterated it would erase “conflicts and obligations” associated with campaigning.

“We've got to have someone who's focused on the job and that's it. And we haven't had that,” Stoddard said. “Whether you agree or not with their politics, they would be doing a better job as an attorney.”

Only seven states — Alaska, Hawaii, Maine, New Hampshire, New Jersey, Tennessee and Wyoming — appoint the attorney general. In five states, the governor picks who gets the job and in Tennessee, the state’s supreme court makes the decision. Maine’s Legislature makes its pick. The move in Utah would also mean amending the state constitution, which requires majority support of voters.

Burbank said changing the constitution is where the biggest obstacle lies.

“Most voters are suspicious of change when it comes to things like this. And particularly if it were seen as being a sort of a political deal,” he said. “And where voters, I think, are going to fall on that is by and large, they're going to support the status quo unless they really see a reason why this is a problem at the moment.”

Saige is a politics reporter and co-host of KUER's State Street politics podcast
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