AZAG Mark Brnovich is a Political Performance Artist and Violating Professional Ethics… Again

Arizona Attorney General Mark Brnovich is masterful at capturing headlines to advance his political agenda. But as an attorney – well – not so much.

Brno’s latest media stunt is to loudly threaten to criminally prosecute Arizona Secretary of State Katie Hobbs, a likely Democratic nominee for Arizona Governor, and – I’m sure this has nothing to do with this legal harassment – the source of an ethical complaint against Brnovich which resulted in his discipline for unethical behavior by the AZ Bar.

Hobbs asked the courts to scotch this stunt by Brno, but the courts punted, saying that they couldn’t stop his shenanigans because he hadn’t actually taken any legal action yet. Now Brno has delegated the ‘prosecution’ to Republican Cochise County Attorney Brian McIntyre, asking him to investigate and make a charging decision.

First, let’s set some context for this threat by Brnovich against Hobbs. The law at issue (ARS §16-316) reads, in relevant part, as follows:

“A. Notwithstanding any other statute in this title, the secretary of state shall provide a system for qualified electors to sign a nomination petition…”

The criminal penalty he is threatening her with is pursuant to ARS §16-1010:

“A person charged with performance of any duty under any law relating to elections who knowingly refuses to perform such duty, or who, in his official capacity, knowingly acts in violation of any provision of such law, is guilty of a class 6 felony unless a different punishment for such act or omission is prescribed by law.”

Brnovich has served as attorney general since 2015. In 2016, the legislature expanded E-Qual to include congressional and local candidates. But Republican Secretary of State Michele Reagan, who served through 2018, never actually upgraded the system to accommodate local candidates.

There was no threat of prosecution or civil suit by Brnovich for the Republican Reagan’s failure to provide a system for qualified electors to nominate those candidates, despite the AZLeg’s specific direction to do so.

For more historical context, independent of Brnovich’s tenancy, Republican Secretary of State Ken Bennett, who was in office before Brnovich’s time as attorney general, shut down E-Qual shortly after the original system went online in order to update it for the new district lines in 2012 after the last round of redistricting. He faced no allegations of lawbreaking for doing so. Lawmakers created the E-Qual pilot program in 2011, expanding it into a permanent program three years later. At no time was it contemplated or discussed by anyone to attach criminal liability to Bennett for taking down E-Qal to make necessary updates.

Even a non-lawyer can easily discern a double standard being applied in Brno’s threats.

As a former prosecuting attorney, I find that Brno’s motives become much more obviously unethical.

First, and most obviously, as a criminal matter, there is an insurmountable ambiguity in the statute: “the secretary of state shall provide a system” is rather vague as a basis for prosecution. What does it mean to ‘provide’ a system? Does it require continuous provision at all times? Must there be a backup system so that maintenance or failure does not interrupt said provision? The statute is silent on these matters, and a judge, jury and prosecutor simply cannot decide these matters. The statute is probably facially too vague to sustain a criminal prosecution for Hobbs’ actions in the absence of clear evidence of intentional malfeasance.

Secondly, and perhaps most importantly, there is no criminal mens rea. That is a fancy way of saying that one would have to prove, beyond a reasonable doubt, that the Secretary of State was not only ‘knowingly’ violating the law, but that he or she has a specific criminal intent in so doing. A prosecutor would be entirely stymied in providing that evidence of mens rea beyond a reasonable doubt by the clear evidence of prior practice by States Attorney Generals and the clear purpose of Secretary Hobbs updating the system to accommodate recent redistricting.

In conclusion, no rational and ethical prosecutor would bring such a prosecution. Ever. Assuming, of course, that one’s purpose is actually seeking to enforce the law. And there’s the rub. It is unethical for a prosecutor to pursue legal actions for any other purpose. There are canons of ethics that, for very good reason, constrain specifically the power of prosecuting attorneys, and Brnovich’s harassment of Hobbs on such flimsy and improbable bases potentially runs afoul of many of them:

Standard 3-1.6 Improper Bias Prohibited 

(a) The prosecutor should not manifest or exercise, by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, gender identity, or socioeconomic status. A prosecutor should not use other improper considerations, such as partisan or political or personal considerations, in exercising prosecutorial discretion. A prosecutor should strive to eliminate implicit biases, and act to mitigate any improper bias or prejudice when credibly informed that it exists within the scope of the prosecutor’s authority.

Standard 3-1.7 Conflicts of Interest

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(d) The prosecutor should not be involved in the prosecution of a former client. A prosecutor who has formerly represented a client should not use information obtained from that representation to the disadvantage of the former client.

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(f) The prosecutor should not permit the prosecutor’s professional judgment or obligations to be affected by the prosecutor’s personal, political, financial, professional, business, property, or other interests or relationships. A prosecutor should not allow interests in personal advancement or aggrandizement to affect judgments regarding what is in the best interests of justice in any case.

Standard 3-1.10  Relationship with the Media

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(c) The prosecutor should not make, cause to be made, or authorize or condone the making of, a public statement that the prosecutor knows or reasonably should know will have a substantial likelihood of materially prejudicing a criminal proceeding or heightening public condemnation of the accused, but the prosecutor may make statements that inform the public of the nature and extent of the prosecutor’s or law enforcement actions and serve a legitimate law enforcement purpose. The prosecutor may make a public statement explaining why criminal charges have been declined or dismissed, but must take care not to imply guilt or otherwise prejudice the interests of victims, witnesses or subjects of an investigation. A prosecutor’s public statements should otherwise be consistent with the ABA Standards on Fair Trial and Public Discourse.

Standard 3-4.3 Minimum Requirements for Filing and Maintaining Criminal Charges 

(a) A prosecutor should seek or file criminal charges only if the prosecutor reasonably believes that the charges are supported by probable cause, that admissible evidence will be sufficient to support conviction beyond a reasonable doubt, and that the decision to charge is in the interests of justice.

Perhaps Brnovich believes that farming his harassment of Hobbs out to a hand-selected crony absolves him of violating ethical requirements, but I suspect that this previously disciplined, unethical prosecutor who regularly abuses his prosecutorial discretion for political purposes, may find the Bar disagrees if asked their opinion on his latest political stunt.