George Brauchler, the Republican running to be Colorado’s next attorney general, says he disagreed with the federal government’s policy of separating immigrant families at the U.S.-Mexico border. But, he says, that’s really none of a state A.G.’s business, anyway.
“If it takes place at the border and doesn’t involve Coloradans,” then the state attorney should stay out of it, Brauchler argued during an interview last week.
His opponent, Democrat Phil Weiser, also opposed the Trump administration’s family separations. It “shocks the conscience,” he says.
Weiser disagrees, however, with Brauchler’s assertion that the separations are no concern for a Colorado attorney general.
“We as a state are committed to welcoming asylum seekers who deserve due process,” he said, also in an interview last week. “It’s part of our constitutional commitment. … We have federal legal protection for asylum seekers. We in Colorado care about that.”
Their divergent assessments of how the state’s next attorney general should approach border enforcement — Brauchler says he would’ve stayed out of it, and Weiser says he would’ve fought the Trump administration — exemplify a stark difference between the candidates: Weiser says he got in this race specifically to act as a check on Trump, and Brauchler says he wouldn’t actively seek to pick federal fights against Trump or, for that matter, against a Democratic president.
Brauchler, a 48-year-old from Parker, is the current district attorney for the 18th Judicial District, where he prosecuted the Aurora theater shooter, James Holmes, and unsuccessfully sought the death penalty in that case. (He supports the death penalty as a “discretionary tool,” and all three of Colorado’s current death-row inmates were prosecuted by his office.) Brauchler at one point campaigned for governor this cycle, but he exited the race one year ago when Colorado Attorney General Cynthia Coffman announced she’d be running for governor and vacating her seat. Brauchler ran unopposed for the Republican nomination for Coffman’s job, and Coffman’s gubernatorial run ended in April when she failed at the state assembly to qualify for the primary ballot.
Weiser, 50, lives in Denver and is the former law dean at the University of Colorado. He’s got deep roots in Democratic politics, having served in Bill Clinton’s Department of Justice’s Antitrust Division, on Barack Obama’s transition team, on former Colorado Gov. Bill Ritter’s Innovation Council and as a policy advisor to the Hillary Clinton campaign in 2016. After Hillary Clinton lost, Weiser says, he decided his best next move would be running for state attorney general to combat “lawless” action by Trump. With establishment backing, he squeaked by his leftist primary opponent, state Rep. Joe Salazar, with 50.4 percent of the vote.
In general election debates, stump speeches and campaign ads, the contrast between the candidates has largely been defined by how they envision themselves tackling federal action — or not.
“Confine yourself to the will of the people of Colorado,” Brauchler said. “What I hear from my opponent more often than not is, ‘If I think the federal government is doing something that violates someone’s rights…’ — that is a much more activist position than I want to take. I am not interested in running around the country trying to figure out how to lock hands with people to file a lawsuit against the administration and every agency [with] which I disagree.”
Weiser responded, “State A.G.’s are authorized to and, I believe, are obligated to defend federal legal interests of their states. I don’t believe George will never seek to act on matters of federal law. Those laws affect and in many cases protect Colorado. To say you’d stay out of them would, I believe, put Colorado in a class of one, because I don’t believe there’s a single A.G. in the country who says, on matters on federal law, ‘I do nothing.’”
Colorado legal experts from both sides of the aisle agree that on federal matters there is no one correct approach for a state attorney general. Attorneys general can almost always find the justification to jump into the fray, either from the bully pulpit or by suing the federal government — that is, if they’re looking for that justification.
“Where there’s a will, there’s a way,” said Jay Tiftickjian, defense attorney and president of the Colorado Criminal Defense Bar. “If either one of these candidates wants to get involved, there’s going to be ways to do it. If they don’t want to get involved, that’s a choice. That’s not because there’s a lack of a legal basis to do so.”
Democratic attorneys general have found that will in the Trump era, acting as the president’s chief policy antagonists. When Trump announced last year that he’d end the Deferred Action for Childhood Arrivals program, Democratic state attorneys general sued him. They’ve challenged his Muslim travel ban, filed suits to preserve environmental regulations and sued the Department of Education for relaxing regulations on for-profit colleges.
But this is isn’t just a Trump thing. State attorneys general have proven more and more likely to take on political fights and especially to join forces with multistate litigation, which a Marquette University researcher showed increased dramatically during the Clinton, George W. Bush and Obama administrations. As Colorado’s attorney general, Cynthia Coffman has joined her counterparts in multistate suits against tobacco companies, Uber and opioid producers, but she has declined to add her name to multistate suits over environmental and immigration issues, among others.
There’s no reason the rise in multistate lawsuits can’t continue in years to come, and Colorado is considered one of eight key swing races this year as Republicans and Democrats try to consolidate their legal coalitions at the state level.
“George can talk about not wanting to be an activist, but I actually think you really can’t be A.G. if you’re not an activist,” said Stan Garnett, former Democratic state attorney general candidate and Boulder district attorney. “You’re a lawyer for the people of Colorado, so you need to be identifying issues and you need to be ready to fight legal battles on their behalf, and that requires a certain amount of activism.”
Peter Weir, the Republican district attorney in Jefferson County, agrees with Brauchler that the attorney general of Colorado shouldn’t seek out partisan battles. But he agrees with Garnett that the opportunity to do so is always there.
“If you have that proclivity,” he said.
“It all depends on how you approach the job. If you want to be an activist, you certainly can find a reason to get involved on any number of issues.”
Weiser has promised to do so. He says he’s eager to defend the protections of Roe v. Wade should they be limited by the new U.S. Supreme Court. He says he’ll gladly fight to keep questions about immigration status off the Census and to combat pollution increases that would be likely under a recent proposal by Trump to decrease the number of required emissions checks at oil and gas operations.
Brauchler, in contrast, says unless the federal government is taking action “that expressly violates our laws, our rights, our Constitution, and that steps on our sovereignty, my job is not to try to thwart an administration.”
“That’s someone else’s business: congressmen,” he adds.
Legal observers agree that’s subjective. Whether or not federal policy is the business of the Colorado attorney general depends on the eye of the beholder, and Weiser and Brauchler are approaching the question through very different lenses.