Never one to let the law stand in the way of his political agenda and quest to outmaneuver Lieutenant Governor Ralph Northam for the support of the Democratic Party’s liberal base, Attorney General Herring announced to a crowd of adoring liberals that certain illegal aliens are eligible for in-state college tuition at Virginia’s public colleges and universities. The General Assembly has considered and rejected legislation to authorize in-state tuition for the past several years. But why would legislation be needed if the law already required it? I don’t recall a floor speech from then Senator Herring arguing that the legislation wasn’t needed because Virginia law mandated in-state tuition for these students. His “legal advice” is strictly a political calculation meant to position him to run for Governor.
Activism isn’t new to General Herring. It was only a few weeks ago that he declared Virginia’s Constitution to be unconstitutional and joined the side of those challenging traditional marriage in court. The Family Foundation has been in a protracted Freedom of Information Act fight with General Herring for documents related to his decision to challenge Virginia’s Constitution. The first roadblock we had to overcome was an effort to overcharge for documents. Thankfully, after we repeatedly pointed out the limitations the Freedom of Information Act places on charges and that his cost estimates were in violation of the Act, the Attorney General agreed to waive the charges. The next hurdle we face is the threat that General Herring will withhold much if not all of the responsive documents claiming they are protected from release by the Attorney-Client privilege.
That is what makes today’s announcement interesting. The letter the Attorney General released today provides legal guidance to Virginia’s colleges and universities regarding tuition. This document would certainly appear to constitute legal advice subject to the attorney-client privilege. It raises questions about the Attorney General’s selective use of the attorney-client privilege. If he wants to publicize his legal advice to colleges and universities, but not documents related to his decision on Virginia’s marriage amendment, it raises the question of what he is hiding? Why doesn’t he want to publicly trumpet his advice on Virginia’s marriage amendment?
I understand that the basic premise of the attorney-client privilege requires that the privilege rest with the client. In other words, the client gets to decide if and when to release the privileged communication. Governor McAuliffe’s administration either asked for the legal advice to be released or it didn’t. If the Governor’s administration waived the attorney-client privilege, we have to wonder if his Excellency is demonstrating a preference for General Herring over Lieutenant Governor Northam for 2017. If he didn’t, then we have to ask why General Herring thought it appropriate to release attorney-client privileged documents. Perhaps his application of the attorney-client privilege is as selective as his application of the law.