Maryland Attorney General Brian Frosh (D.) was a key player in the rollout of a well-funded plan by former New York City mayor Michael Bloomberg to place lawyers into attorney general offices across the nation to litigate environmental and climate change issues, according to a Washington Free Beacon review of emails obtained by a D.C.-based attorney.
The scheme has fallen under scrutiny because Bloomberg, not the state, was the source of the salaries for the lawyers placed with attorneys general.
One of the participants in the emails described the plan thusly: "the gist is that Bloomberg is funding through NYU some fellowship positions for mid-career environmental litigators to be farmed out to State Attorney's General to join the fight against Trump's rollback of our environmental protection laws and regulations."
At issue is the practice of allowing a third party to fund the deputizing of attorneys into the highest arm of state law enforcement and whether or not this is an illegal expansion of the OAG's reach. Additionally, the Virginia General Assembly last year required staff to the Virginia attorney general be paid only by funds allocated by the state, and not by any third party.
Emails obtained through open records requests by Chris Horner for the nonprofit organization Government Accountability and Oversight show that Frosh conducted much of this business on his personal Gmail account, raising questions of the extent to which other business about the Maryland AG office might flow through his personal account.
In one chain of emails from August 2017, as the plan was being rolled out, Frosh was given a set of talking points to deliver to other state AGs on a conference call with the Democratic Attorneys General Association, explaining the mechanisms and execution of the Bloomberg scheme.
Those talking points came from David Hayes, whose email signatures identified him as the executive director of the State Energy & Environmental Impact Center, a school within the New York University School of Law funded by Bloomberg to be the pass-through agency for the plan of placing the attorneys across the country.
Two days after that conversation, Hayes emailed linking to a story in the Washington Post that reported on the creation of Bloomberg's school at NYU, and said, "We're off to the races. This would never have happened without your leadership."
Hayes was also a former Interior Department deputy secretary under both the Obama and Clinton administrations.
The Maryland AG's office was one of the early adapters of the Bloomberg project, taking on one of the attorneys. Despite the fact that the lawyer was being paid a $125,000 salary by Bloomberg's school at NYU, Frosh labeled him a "pro bono" attorney, according to Government Accountability and Oversight.
In another email from January of 2018, Frosh writes to an employee at Yale University looking to recruit what would be his second Bloomberg-funded attorney.
"Do you know anyone who would be interested in saving the planet from the predations of Scott Pruitt and Ryan Zinke?" he wrote.
Frosh also helped the Bloomberg scheme get traction with the National Association of Attorneys General.
When Hayes asked NAAG to publicize the Bloomberg plan, NAAG initially deferred, noting that all of the participating AGs were Democrats and that promoting the plan under those circumstances might compromise NAAG's mission to be nonpartisan.
With those thoughts in mind, Hayes then asked Frosh to make the publicity request to NAAG, thereby making it more palatable to the organization.
In February, the Virginia General Assembly added an amendment to the annual budget that effectively nullified the Bloomberg plan, or other plans similar to it, in the commonwealth. Virginia has maintained in court that they have not accepted any placement of an attorney.
"The sole source of compensation paid to employees of the Office of the Attorney General for performing legal services on behalf of the Commonwealth shall be from the appropriations provided under this act," the amendment read.
Thus far, Horner says Bloomberg-funded attorneys have been placed in: Oregon, New York, Massachusetts, Maryland, Illinois, New Mexico, Washington, and the District of Columbia.
In Oregon, a nonbinding analysis by the legal counsel for the Oregon State Legislature found that the Bloomberg funding of attorneys placed in the state's department of justice (a state agency, not federal) was probably not completely in compliance with state law.
Bloomberg's school at the NYU School of Law, the State Energy and Environmental Impact Center, has always claimed that having a third-party pay for lawyers to be embedded with OAGs is acceptable and ethical.
"The State Impact Center operates within legal and ethical rules to assist state AGs through the substantial legal expertise of its leadership team on clean energy, climate and environmental laws and policies and through its fellows program in which state AG offices direct the day-to-day work of fellows," a spokesman for the center said at the time, referring to Horner's original report in August of 2018.
Horner believes if Republicans were hiring and paying for third-party attorneys to do highly specific work with the full force and authority of state law enforcement, there would be an outcry.
"If what [the OAGs] are saying is, ‘Well, it's not illegal,' then they're saying they are perfectly fine with the Koch Foundation renting office space across from any office of attorney general to give her the staff she feels she really deserves that the legislature won't give him, to work on issues of Koch interest," Horner told the Washington Free Beacon last year.
The controversy caught the eye of the Wall Street Journal editorial pages as well.
"The ethical problems here should be obvious," the Journal wrote. "Private interests are leveraging the police powers of the state to pursue their political agenda," adding that, "[n]one of this is reassuring about the fair administration of justice."
Requests for comment to Frosh's office were not returned.