Hickenlooper Tried to Exert Authority Over Colorado AG

Dem advocating U.S. AG be more independent from president

John Hickenlooper
John Hickenlooper / Getty Images
May 14, 2019

John Hickenlooper attempted to bend the Colorado attorney general to his will during his second term as governor, but as a presidential candidate he's touting a plan to make the federal attorney general more politically independent and less responsive to the nation's top executive.

Hickenlooper's proposal to push the U.S. attorney general in a more independent direction comes as Democrats complain about Attorney General Bill Barr, who the party's top leaders accused of serving the president and not the nation in the wake of the release of the report by special counsel Robert S. Mueller III.

Yet Hickenlooper's presidential campaign cuts against the former governor's actions in 2015 and 2016, when he asked the Colorado Supreme Court to declare that the Colorado attorney general could not sue the federal government unless the AG first had the governor's permission.

After the Obama administration unveiled the "Clean Power Plan" in 2015, Colorado Attorney General Cynthia Cofffman (R.) joined suit with nearly two dozen other states arguing that the law resulted in federal overreach of powers belonging to the states.

"The governor did not appreciate my actions, and he did not want the State of Colorado named in a lawsuit against Obama's EPA [Environmental Protection Agency]," Coffman told the Washington Free Beacon by phone. "So he made the unusual decision to challenge in the Colorado Supreme Court the attorney general's independent authority to file a lawsuit against the federal government."

Hickenlooper's views on the independence of attorney generals seems to have evolved. Last week, he detailed his ideas on MSNBC with host Stephanie Ruhle:

RUHLE: Attorney General Bill Barr was found in contempt by Congress. You say the Department of Justice should be an independent agency?

HICKENLOOPER: Absolutely. The attorney general should be appointed by the president but approved by 60 senate votes, not 50 and they should not be able to remove, the president shouldn't be able to remove the attorney general without cause. The attorney general is the protector of rule by law for all of the American people. He shouldn't be working for the president just to do his bidding.

RUHLE: Like an at-will employee.

HICKENLOOPER: He's an at-will political appointee that the president can remove him for any reason. That shouldn't happen. The president has general counsels, other lawyers to do his legal work. The attorney general should be working for the people and in 44 states, the attorney general is separate from the governor, right, they represent the people.

When Hickenlooper asked his state's top court to decide the issue, his legal filing claimed, "Colorado's Governor is the state's 'supreme executive,' and it is his responsibility to ensure that the laws are faithfully executed."

The Colorado Supreme Court voted 5-2 to deny a hearing on Hickenlooper's petition, saying that the governor already possessed an "adequate alternative remedy."

"The Supreme Court left undecided whether the attorney general can legally bring federal lawsuits on behalf of Colorado without the governor's authority," Hickenlooper's spokeswoman Kathy Green said at the time. "The Court did not deny the importance of this issue, nor did it uphold the legality of the attorney general's actions."

Republicans clearly saw the vote as a rebuke of Hickenlooper, as Coffman's role in the suit continued on unimpeded.

"Someone needs to tell Gov. Hickenlooper that the court's denial to hear the case is a strong 'no,'" Kelly Maher, executive director of Compass Colorado, said to "The governor needs to realize that the attorney general is an autonomous statewide elected official unto herself. He doesn't get to be the boss of everybody."

Coffman says the "other remedy" referred to by the state supreme court was for Hickenlooper to start at the beginning and file a lawsuit in district court, which still would have amounted to a small rebuke given that the state's constitution allows the governor to ask the supreme court to "give its opinion upon important questions upon solemn occasions when required by the governor."

"There was tension between us in our roles from the beginning," Coffman added in her conversation with the Free Beacon. "And I certainly think you can have healthy tension. And you should have that between political parties with different philosophies. But there were times, and the Clean Power Plan is an example, the Gold King Mine is another, where the tension reached a level that wasn't healthy and wasn't constructive."

When asked if the tension was the result of Hickenlooper trying to impose his own agenda on the AG's office, Coffman's replied, "Yes."

"I was very pleased during the course of the legal action at how we succeeded making the argument that the [federal] government and the EPA had overreached. To me it was protecting state powers and state sovereignty. And the governor I don't think saw it that way. He saw it as a political action, an attempt to block climate change legislation at the end of the Obama administration," Coffman said. "I saw it as saying 'If we cede state power here to a federal agency, then as a state we're giving up something that we're entitled to in the state constitution and the 10th Amendment.' And we can't do that."

After a Democrat won the Colorado attorney general's office this past November, the state subsequently withdrew from the lawsuit against the EPA.

Requests for comment emailed to the Hickenlooper campaign as well as his leadership political action committee were not returned.