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