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McDonnell critics question ideology
SOME SAW AGENDA IN LEGAL OPINIONS
'My goal was . . . the right answer under the law'

By Anita Kumar
Washington Post Staff Writer
Thursday, October 29, 2009

RICHMOND -- In one of his first moves after being sworn in as Virginia's attorney general in 2006, Republican Robert F. McDonnell advised the newly elected Democratic governor that he had overstepped his constitutional authority when he outlawed bias against gays in state hiring.

McDonnell said that only the General Assembly, not the governor, had the right to protect a category of people. But Gov. Timothy M. Kaine and others wondered whether the new attorney general had put ideology above the law.

In his three years as attorney general, McDonnell, the GOP nominee for governor, could not escape questions about the legal advice he provided, no matter how he came down on an issue.

His critics frequently accused him of writing opinions or intervening in court cases as a way to advance his conservative agenda. His supporters said he went out of his way to do the opposite, noting that he sometimes went against his own values.

His record in the office suggests that McDonnell would be a governor who often -- but not always -- takes a conservative position.

"There were cases I might not have agreed with, but my goal was to do what we thought was the right answer under the law," McDonnell said in an interview. "If you're doing the right thing and you're just declaring the law, there are going to be people who have different opinions on what they hope the law is."

McDonnell managed an office of nearly 200 lawyers who issued hundreds of opinions to legislators and state agencies, and he represented the state in thousands of lawsuits and criminal appeals. He was also considered the state's top cop.

In addition, he proposed bills that passed with bipartisan support that toughened sentencing for violent sexual predators, cracked down on dealers who sold drugs to children and fought Internet crimes. He persuaded warring factions of his party to negotiate a landmark transportation package, although the state Supreme Court ruled parts of it unconstitutional. After the 2007 Virginia Tech shooting, he helped Kaine block gun sales to people involuntarily committed to mental health treatment.

But for much of his tenure, until he resigned in February to run full time for governor, McDonnell was dogged by questions about whether he used his powerful statewide perch to advance his agenda.

"A smart lawyer can come up with a legal justification for just about anything," said state Del. David L. Englin (D-Alexandria), who often opposed McDonnell. "There is no doubt he used the office to advance his agenda."

Stands on social issues

As attorney general, McDonnell addressed some of the issues that helped him make a name for himself as a legislator, including abortion, as well as other topics that he rarely talks about on the campaign trail, such as illegal immigration and gun rights.

McDonnell, who supported bills banning a procedure that its opponents refer to as partial-birth abortion, appealed a subsequent court ruling to overturn the law in Virginia and submitted a brief to the U.S. Supreme Court on a similar case stemming from a Nebraska law.

McDonnell, who was raised in a Catholic household and often speaks about the importance of faith in his life, filed a motion to intervene in a court battle last year between the Episcopal Church and 11 breakaway congregations that had left after a dispute over homosexuality -- a highly unusual move while a case is at the circuit court level.

In both cases, McDonnell said he was defending the constitutionality of state statutes but not necessarily taking sides in how the cases should be decided. "When the constitutionality of a Virginia statute is attacked, that's when the attorney general has the ability -- if not a duty -- to intervene," he said in an interview.

McDonnell, who had voted in favor of a state constitutional amendment prohibiting same-sex marriage, issued an opinion that paved the way for the amendment to be put on the ballot by advising that it would have no effect on the legal rights of unmarried people.

"It would be hard for any reasonable person to believe that McDonnell would have issued an opinion that did not help those who wanted the amendment to pass," said Claire Guthrie Gastanaga, a lobbyist for Equality Virginia, a nonpartisan gay rights group, who ran the campaign opposing the amendment.

McDonnell has not mentioned gun rights or illegal immigration much on the campaign trail this year, but he spent considerable time on both issues while attorney general.

On guns, he advised state police to make private the records of people licensed to carry concealed weapons. He also advised school boards to allow guns at board meetings if they took place off campus and told state officials that they did not have the authority to restrict firearms in parks.

He had a high-profile feud with New York Mayor Michael R. Bloomberg, who sued Virginia dealers for illegally selling guns to undercover agents, and filed a brief supporting overturning the District's three-decade ban on handguns.

Chris W. Cox, the National Rifle Association's chief lobbyist, cited the Bloomberg and District cases as reasons his group switched from endorsing Deeds to McDonnell. McDonnell's "opinions and actions as an attorney general have protected and enhanced the Second Amendment rights of law-abiding Virginians," he said.

On immigration, McDonnell advised local law enforcement agencies to enter into agreements with federal agents to detain illegal immigrants and advised commissioners of revenue to deny business licenses to illegal immigrants.

He sent a letter to President George W. Bush demanding action on illegal immigration and repeatedly urged Kaine to enter into a partnership with federal agents that would allow agencies to deport illegal immigrants.

He requested that state police look through the state's sex offender registry to find foreign-born offenders and turn their names over to the federal government.

"There were a whole series of things every day where the [attorney general's office] represents my state agencies on matters that are not particularly controversial, but on the big issues -- budget, transportation, immigration and just the fair treatment of all Virginians -- he took a very ideological position," said Kaine, who is chairman of the Democratic National Committee.

Some unexpected moves

But McDonnell didn't always do what people thought he would.

He advised the University of Virginia that it could permit same-sex partners of students and employees to join the school's gym, reversing a previous decision and angering some social conservatives. Previously, only spouses and children had been eligible, but gay employees had lobbied for the benefit for years.

He advised the City of Manassas that it had only limited powers to regulate abortion clinics and that any regulation had to be reasonable in scope and "not unduly burden a woman's decision-making process."

"When I issued opinions, it was based on the law and what we believed the law was," McDonnell said. "I wanted the lawyers to get the legal answers instead of me telling them what to write."

McDonnell included Democratic legislators and members of Kaine's administration on task forces he formed to target online sexual offenders and reduce regulations on businesses. He signed onto a Democrat-led plan to reform student loan practices. And on election night 2006, when he realized his friend Republican George Allen's Senate race was headed to a recount, McDonnell stayed home, saying appearing at a partisan event would be inappropriate.

On the day he resigned from office, Democrats and Republicans praised McDonnell for providing the state with what they said was sound legal advice. Bill Leighty, former chief of staff to Democratic governors Kaine and Mark R. Warner, allowed his name to be used on a news release.

"For folks to say its ideology, that's just not true," said Del. Terry G. Kilgore (R-Scott). "You can say a lot about Bob McDonnell, but you can't say he's not fair."

Staff researcher Meg Smith contributed to this report.

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