The Case Against John Cornyn
If the controversial attorney general of Texas were in the dock, the charges against him would boil down to this: playing politics with the law at the expense of the public interest. Is he guilty?
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In normal times, the State Attorney General’s office is not a hotbed of controversy. It is, as its current occupant, John Cornyn, likes to say, the biggest law firm in the state, and much of its functioning is routine: approving bond issues, collecting delinquent child support payments, issuing advisory opinions, and defending state officials and agencies in run-of-the-mill lawsuits. Occasionally a high-profile case comes along, most notably the landmark suit against the tobacco industry initiated by Cornyn’s predecessor, Dan Morales, but it is more typical that months and even years will go by without the AG making a big splash in the Texas political pond.
But things have been different around the AG’s eighth-floor sanctuary on the north side of the Capitol grounds since Cornyn took over following the Republican electoral sweep of 1998. The former Texas Supreme Court justice has been in the news so often that he has hardly been out of it. He tried first to eviscerate, then to eliminate altogether, the $3.3 billion in fees awarded to the team of outside plaintiffs lawyers retained by Morales in the tobacco case. He has brought a halt to the practice of hiring plaintiffs lawyers to represent the state in complicated cases unless they forgo their usual contingency-fee arrangement (a slice of the winnings) for an hourly wage—a policy that effectively keeps the state’s best courtroom lawyers from working for the public. He sent a letter to school districts on the subject of school prayer at football games (which Cornyn favors) that was mystifying in its ambiguity after a federal appellate court had ruled explicitly against it. He settled a water pollution suit against a pipeline company for a record $35 million only to have critics say he should have gotten a lot more. He declared a groundbreaking victory in a suit against HMOs, notwithstanding that he didn’t get so much as a dollar in fines. He made national news in March (including a front-page story in the Washington Post) by hosting a fundraiser for the Republican Attorneys General Association, which solicited untraceable contributions from companies that were current targets of lawsuits brought by various states, including Texas. These episodes created such an uproar that it was almost as if the state’s top legal officer himself were on trial.
If Cornyn were in the dock, the charges against him would boil down to this: playing politics with the law at the expense of the public interest. I went to see him to get the case for the defense. We sat at a small table in his office near a framed white quill displayed on the wall—a prized memento that is given to lawyers when they appear before the U.S. Supreme Court for the first time. He was coatless, wearing a white shirt with blue stripes, navy suspenders, and a royal blue tie. The first case I brought up was his decision to allow more than one hundred homes that were protruding onto public beaches as the result of storm erosion to remain in place for now (unless or until they threaten public access or health). This is a departure from previous state policy, which was to remove them. “There was a little blurb in the Houston Chronicle today,” Cornyn said, handing me a clipping. He was suing to remove a home and set a legal precedent. Oops. I hadn’t seen it. We find the defendant not guilty on that count. Soon our discussion turned to the Koch Industries case, a $35 million settlement he had reached with the Wichita-based company whose corroded pipelines had leaked oil products into the waters of Texas and several other states. The sum represented the largest penalty for pollution ever assessed under the federal Clean Water Act; even so, it drew criticism from environmentalists, because the amount represented around 15 percent of the $225 million Koch could have been fined. Cornyn dismisses the naysayers: “I have to respectfully note my dissent,” he said, “to anyone who says we didn’t get enough.” In jest, he said of the settlement, “For a Republican, it’s pretty darned good.”
A closer look at the Koch case raises additional questions—about ideology, about ethics, and about the nature of the public interest—that are far more troubling than the isolated issue of whether the settlement was adequate. When Cornyn was running for attorney general two years ago, he accepted a $5,000 contribution from Koch. This raised some eyebrows because Morales had already joined the federal government in filing suit against Koch. Sometimes it is hard to know where the ethical lines should be drawn concerning money and politics, but accepting a hefty check from a defendant in a case in which you are seeking to be the opposing attorney seems to be clearly on the wrong side of the line. Indeed, Cornyn himself had no trouble discerning right from wrong when the person accepting the money in a similar situation was his GOP runoff opponent, Barry Williamson, whom Cornyn attacked as “ethically tone-deaf to genuine public concern about fundraising” and called upon to return the contributions.
After Cornyn took office, the Koch case suddenly took a different turn. Cornyn asked Houston plaintiffs attorney Mike Gallagher, whom Morales had hired to argue the complex case in court, to subject his fee to legislative approval—a requirement that has since become state law. Like most plaintiffs attorneys, Gallagher does not bill by the hour or keep detailed time records. If he wins, he gets a substantial percentage of the award; if he loses, he gets nothing and can’t recoup his expenses. Such arrangements are known as contingent fees, and Cornyn acknowledges that they are “the poor man’s key to the courthouse.” They can also be advantageous to the state, allowing it to hire top legal talent without dipping into tax revenue to pay legal fees that can run into millions of dollars. No one worried much about this practice until plaintiffs lawyers hired by Morales settled a lawsuit against tobacco companies for a final total of $17.3 billion, of which their arbitrated share was a whopping $3.3 billion. Cornyn essentially put Gallagher in the position of subjecting himself and his fee to legislative oversight or withdrawing from the case. Gallagher withdrew, leaving the state without its courtroom advocate. The result was that the state had little choice but to settle the case.
Did Cornyn’s contributor get a break? Perhaps not. Gallagher himself had written Cornyn when he withdrew that the case could be settled for $20 million; Cornyn got $35 million. What we will never know is how much money Cornyn left on the table by not going to trial behind one of the state’s foremost litigators. It matters: Because Koch had fouled the environment, the proceeds from the lawsuit will be used for environmental cleanup. Texas’ share of the settlement proceeds was $17.5 million. After legal fees and expenses were paid, roughly half of the remaining $12 million was earmarked for plugging abandoned oil wells. Texas has 27,000 unplugged wells, and they are a serious groundwater pollution problem. It costs an average of $4,500 to seal an abandoned well. Six million dollars will plug 1,333 wells. How many wells could have been plugged if the case had gone to trial? And which is the greater public interest: to protect groundwater or to achieve many Republicans’ ideological and political goal of eliminating contingent fees that enrich Democratic plaintiffs lawyers? Verdict: Guilty of the appearance of impropriety by taking Koch’s contribution; guilty of putting ideology ahead of the public interest. Here are some other high-visibility situations in which Cornyn has come under scrutiny.
• School prayer. The Santa Fe school district in Galveston County wants to have student-led prayer over the loudspeaker at football games. The U.S. Fifth Circuit Court of Appeals ruled against Santa Fe, but the Supreme Court decided to hear the school district’s appeal. The state was not involved in the case; nevertheless, Cornyn (and Governor George W. Bush) filed a friend-of-the-court brief, and Cornyn went to Washington to argue in favor of allowing prayer. The problem is not Cornyn’s participation in the case but his interpretation of it. He sent a letter to legislators that correctly explained the Fifth Circuit’s decision: “Although newspapers have reported that some school districts are engaging in ‘civil disobedience’ by allowing students to lead prayers over the loudspeaker at football games, this activity is specifically prohibited by the Fifth Circuit’s opinion and they are doing so at their own risk.” Subsequently, Cornyn sent a similar letter to school districts. This time, however, the sentence about the loudspeaker was gone, and in its place he he wrote, “This opinion does not prohibit students from engaging in voluntary prayer... as long as the school and school officials are not involved in that activity.” That sentence has always been the law. A group of students may pray; they just can’t pray over the P.A. system. If Cornyn’s second letter had been the answer to a law school exam—Write a letter to XYZ school district interpreting the Fifth Circuit’s opinion in the Santa Fe case—its grade would have been an F.
Cornyn is far too good a lawyer to write such a sloppy letter, unless he had a good reason to do so. Perhaps he didn’t want to deliver bad news to school districts that wanted to have prayer. People have been known to blame the messenger. “My letter was based upon what I thought the Supreme Court would do,” Cornyn told me. But the court hadn’t even decided to hear the case when he wrote it. Verdict: Guilty—but political pandering is not a crime.
• The Aetna agreement. In April Cornyn announced what he called a “landmark” settlement of a suit against Aetna U.S. Healthcare, one of several managed-care plans that had originally been sued by Morales. He said that Aetna agreed that its decisions approving or denying treatment would be made by medical professionals, not bureaucrats. The company also promised to stop giving bonuses to doctors who held down costs and imposing penalties on those who did not; in practice, these amounted to financial incentives for doctors to deny medical care to their patients. These are only the highlights of a fifty-page settlement document.
The agreement, however, was greeted with something less than huzzahs. It is only good for two years. Doctors worried that the actual wording of the agreement did not seem as beneficial as Cornyn’s description of it, and soon they were asking the AG to clarify the settlement in writing; the discussions were still going on at press time. Reporters and editorialists noted that Aetna did not have to admit any wrongdoing or pay any money. (Morales had asked for $10,000 per violation plus court costs. “Simply to allow [them] to promise to change their ways without paying any price doesn’t reflect the aggressive enforcement most citizens would like to see,” he told the Washington Post.) Finally, skeptics noted that Aetna had mainly agreed to abide by applicable state laws. That last concession, however, is crucial. Both the state and the federal government have some jurisdiction over HMOs. Where one sphere ends and the other begins isn’t clear; HMOs contend that Texas is exceeding its regulatory authority. But Aetna gave up its right to make that contention in court, where they might have won. Verdict: A hung jury until the issues in dispute are resolved.
• The Republican Attorneys General Association (RAGA) fundraiser. In a solicitation letter, Cornyn touted RAGA’s March get-together at which companies could join the organization for $5,000 up to $25,000. “[R]ound up your clients and come see what RAGA is all about,” he wrote. And what might that be? RAGA “was born out of concerns arising out of the recent industry-wide lawsuits that seek to promote public policy changes via the courthouse rather than the statehouse.” The Center for Public Integrity in Washington, D.C., translated this pitch: Donate “to ensure nonparticipation by Republican attorneys general in lawsuits against the corporations’ interests.” Pennsylvania attorney general Mike Fisher, a Republican, told the Washington Post why he had not joined RAGA: “I try to keep politics out of my business as attorney general.” Verdict: Deferred adjudication. Maybe he was a bit naive.
A little over two years ago, when John Cornyn was running third in the Republican primary for attorney general, no one had an inkling that he would turn out to generate so much controversy. “I started with eight percent of the vote,” he recalled cheerfully, shedding his lawyerly mien for the moment. Never in the history of the world has a politician overcome such odds without thinking that he just might be a figure of destiny, and so one hears around the Capitol (though not from John Cornyn) that he has his eye on bigger things: the United States Senate, perhaps, if either Phil Gramm or Kay Bailey Hutchison should vacate a seat. He certainly seems cast for the part. His long face easily wears a look of gravity, and his short-cropped, almost iridescent silver hair belongs in the coiffure section of the political hall of fame. He has a soothing voice that befits the kind of lawyer he once was—not emotional and accusatory, but the voice of reason who defended insurance companies against medical malpractice claims. He is easy to be around; most of our conversation was about the law, but he never tried to bully his way through an argument. A trace of stiffness survives from his years as a lawyer and judge, but he can slip into good old boy palaver like, “I may have been born at night but it wasn’t last night,” without sounding as if he is reading it off a note card.
In the past, the office Cornyn holds has not been a good stepping-stone for political advancement. Defending state agencies in lawsuits is not the best way to make friends. The Texas political graveyard is filled with AGs who tried to move up to governor or senator but failed: Will Wilson, Waggoner Carr, John Hill, Jim Mattox. Only Mark White made the leap to higher office, winning the governorship in 1982.
Can Cornyn buck the trend? He has been successful at building a constituency with his assault on plaintiffs lawyers and his hostility to mega-lawsuits. “I have very grave concerns with creating public-private legal partnerships in an effort to regulate industry through litigation,” he told me. The problem with this is that Cornyn’s philosophy could cost the state a lot of money. But the lost dollars are hypothetical and the political base he has built is real: He is the toast of the tort reformers.
If a Senate seat doesn’t look as if it might open up, Cornyn could turn to Plan B—as in Bush. He has been a loyal AG, from joining the governor in the school prayer intervention to representing him in court. Bush places a high value on loyalty, so if he wins the presidency, it is not too far-fetched to imagine that Cornyn could end up in some high place. He has legal credentials and judicial credentials; that creates a lot of options. In the almost seven years that he served on the state’s highest court, he built a reputation as a centrist judge on a very conservative bench—just Bush’s style.
But the centrist in Cornyn is hard to find these days. His continuing pursuit of the tobacco lawyers has become unseemly; his antipathy to suits against entire industries is too sweeping; his fundraising for RAGA, though legal, is not consistent with the spotless record he brought to office. His controversies have overshadowed his accomplishments, such as a program to recruit top-notch legal talent. He is a newcomer to serious politics, and his political antennae aren’t fully developed. All the flak he has taken has left him a little bewildered. His argument, in case after case, is that he is just following the law. At the close of our interview, he made a comment about one controversy that could have applied to all: “Rather than engage in a legal process to challenge the merits [of my position], which I stand by, there was a public relations campaign to demonize and vilify me and other people that were trying to do their job.”