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Why is our attorney general ignoring the law?

Arkansas Attorney General Dustin McDanielJohn Brummett’s recent column about Arkansas Attorney General Dustin McDaniel’s questionable and self-serving use of legal settlement funds lays out the start of a good case that McDaniel is abusing his office for political gain.

Brummett asked McDaniel under what authority the attorney general had to spend settlement money, which he supposedly holds in trust for the people of Arkansas, to fund a new branch of his own office that would investigate computer sex crimes.

McDaniel replied that his actions were justified by cy pres, which “he called a time-honored judicial doctrine that holds that settlement dollars ought to go toward addressing the failings made evident by the lawsuit.”

McDaniel is simply wrong, and his interpretation of cy pres represents a perversion of the legal doctrine. I’ve laid out the case against McDaniel’s misapplication of the doctrine in a paper here (opens in PDF).

The larger problem that McDaniel’s actions illuminate is the establishment of an essentially unchecked fourth branch of government in the AG’s office, in which the office seizes for itself executive, legislative, and judicial powers.

McDaniel insists that it is his prerogative both to redirect and to spend public money, powers that are conventionally confined to judges and legislators. McDaniel, although hardly the first AG to exploit the office’s authority for political gain, seems intent on pushing the envelope.

At a wonderfully hypocritical February 2010 press conference where he first announced the settlement, McDaniel alleged that the Zyprexa manufacturers “didn’t care what they were doing to taxpayers.” The same thing could easily be said about McDaniel. Check out my paper for more detail.

(Cross-posted at The Arkansas Project.)

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