Montana GOP Lawmakers Perpetuating ‘The Little Lie'

By Darrell Ehrlick, Daily Montanan

August 1, 2021

If Donald Trump and his supporters are engaged in “The Big Lie,” as it has been termed, then Montana Republicans hot on the trail of judicial misconduct are perpetuating a “Little Lie.”

As the former president tries to undermine the voting process with his bullying wordplay, calling it a fraud, a lie, a sham and fake without evidence, his actions do more than just call the legitimacy of the election into question for some. It has the pernicious and corrosive effect of lessening people’s faith in the system, leaving many vulnerable to believing the system doesn’t work despite overwhelming proof that it does. Once again, perception will outstrip reality.

The election effect is a double whammy that will make it easier to rile up fact-free believers and also become easier to make questionable changes to the voting system because it’s already understood as broken, despite evidence to the contrary.

The same is also true for many Republicans in the Montana Legislature who have gone to war with their judicial counterparts. Please, don’t take my word for it, take the word of our highest court, which recognized lawmakers’ attempts at ginning up outrage, using the flimsiest of excuses.

The justices, though, are at a disadvantage: Not many average Montanans will wade through the 54-page decision which lays bare lawmakers’ shaky legal case and establishes just how out-of-bounds their efforts were in subpoenaing all the emails from the court administrator.

Many conservatives should recoil at the dressing down of the state’s leading Republicans by the justices. Instead, the decision will likely only cement in their minds that a ruling against them is proof-positive of a conspiracy, even though the allegedly corrupt court has ruled twice in their favor recently (in the case regarding governor-appointed judges and a case about what constitutes a legislative quorum).

Justice Beth Baker, quoting U.S. Supreme Court Chief Justice Earl Warren, notes that the highest court in the land has said that legislative investigations “conducted for personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.”

Though those words were written in 1957 when Dwight D. Eisenhower was president, it was like they were staring at Montana in 2021. More recently, in the case of Trump and his tax returns, the nation’s highest court once again affirmed, “there is no congressional power to expose for the sake of exposure.”

The Montana ruling also clinically breaks down the Legislature’s case. For example, as to the supposed deleted or missing emails, the state high court ruling says that email policies adopted in 2002 (nearly 20 years ago) allow for deletion of email and do not specify how long it must be kept. In other words, court administrator Beth McLaughlin could clean out her inbox without fear of being fired. Moreover, only the court has the power to review potentially sensitive subjects in email to decide whether they’re appropriate for public release, not the legislature.

In its ruling, the state Supreme Court points out that if there has been some unlawful conduct the proper investigative parties include county attorneys, the Commissioner of Political Practices or even the Judicial Standards Commission. The Legislature has no law enforcement power.

“As public officials acting in their governmental capacities, district court judges therefore are not ‘lobbying’ when they inform members of the Legislature of how proposed legislation will affect the function of the judicial branch,” Baker writes. “…Neither has the Legislature explained how the practice of responding to Montana Judges Association could suggest partiality for or against any given party or a lack of open-mindedness by district court judges.”

The opinion also pointed out that lawmakers didn’t even comply with the common rules of civil procedure when they failed to allow 10 days for subpoenaed materials and didn’t allow enough due process to allow the court administrator to object.

“These safeguards guarantee minimum standards of due process and should have been understood and respected by both the legislative and executive branch officials involved,” the opinion said.

Justice Dirk Sandefur’s concurring opinion is a supercharged rejection of the lawmakers’ attempt and points out that the lawsuit may have little to do with an administrator’s email.

“Fundamentally, the case is also about dispelling the infantile notion that one coequal branch of constitutional government can legally divest another of its constitutional authority and duty based on contrived allegations of institutional conflict of interest,” Sandefur wrote. “…This simple, self-evident principle is more important than ever when, as now, a single political faction overwhelmingly controls the two partisan branches of state government, rendering it quite expedient to irresponsibly attack and attempt to undermine the only non-partisan branch in an effort to attain unitary, unfettered – in effect, authoritarian – power, unconstrained by constitutional limits.”

Justice Laurie McKinnon was equally persuasive if somewhat more blunt: “Montana, for anyone who did not know, follows Marbury v. Madison.”

The problem isn’t just about a cynical attempt to discredit and undermine the judiciary while the other two branches consolidate authoritarian power – as Sandefur said. It’s something that’s so much more basic and not terribly sexy: What the Montana Supreme Court is attempting to do is something that should have literally happened years ago when these lawmakers were in high school. The justices are being forced to remediate an appalling lack of civics knowledge by Republican lawmakers who swear teary-eyed fealty to the principles espoused in the Constitution, while simultaneously eviscerating the institutions the Constitution charges with protecting our freedoms, like voting and the courts.

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