Doug Wardlow says he wouldn’t be ‘political’ as Minnesota attorney general. What does that mean?

When Doug Wardlow got into the race for Minnesota attorney general, there weren’t a lot of others eager to challenge three-term DFL incumbent Lori Swanson. But a lot has changed since then — not only to the other side of the ticket, but to Wardlow’s chance of winning the office.

Swanson got out of the race, then got back in, and then got back out again to make an unsuccessful bid for governor. Those moves caused a batch of DFL hopefuls to suffer through their own start-stop-and-start-again campaigns for attorney general. Then, just days before a DFL primary that would promote the party’s strongest and best-known candidate, Keith Ellison, the Minneapolis congressman was hit by an allegation of emotional and one-time physical abuse by a former live-in girlfriend.

All of which has made Wardlow — who once might have been considered a ticket-filler for the GOP — into a candidate who could be the first Republican attorney general in Minnesota in 48 years. The few polls conducted on the race show Wardlow and Ellison tied, with enough undecided voters to make it anyone’s contest.

“We’ve got momentum and I’m traveling all over the state and have done hundreds of campaign stops and every event we go to, there’s ever-increasing numbers of people coming and increasing enthusiasm,” Wardlow said. “The polls are looking good and we’re on a very good path. I think it’s because of the message. Everywhere we go, Minnesotans understand that the attorney general shouldn’t be political.”

Ellison, Wardlow argues, is too political. But for that theme to play to Wardlow’s advantage, he has to keep attention focused away from his own politics. Which is why in an interview it is difficult to get Wardlow to state a position — any position — on many issues.

It’s not just interviews, though. The “policies” page on his campaign website offers photos captioned with his putative positions on an array of issues: “Protect Minnesota Families,” “Crack Down on Sanctuary Cities,” “Minnesota First,” etc. But clicking on any of those items only brings up a larger version of the photo, not any more detail about those positions. Wardlow said the campaign is working on updating the webpage.

Wardlow has also sought to apply his aversion to stating policy preferences retroactively. During a forum on TPT’s Almanac, a video was shown of Wardlow opposing a gender-neutral school bathroom measure. In response, Wardlow said he was merely representing a client, and said he could defend LGBT rights as attorney general if that was state law. ”I’m going to fight for the legal rights of every single Minnesotan when I’m attorney general, regardless of race, regardless of creed, regardless of sex, regardless of sexual orientation,” he said. “As attorney general, my views are irrelevant.”

In an interview at his Burnsville campaign office, he said he thinks LGBT Minnesotans could trust him to represent their position in court and would not seek outside counsel to take on cases involving LGBT rights. “I think that I can represent the interests of the state of Minnesota just fine,” he said. “I mean, lawyers are expressing political opinions on things all the time and they go on to represent clients regardless of their political opinions. That’s just the job of being a lawyer, right?”

A not-so-non-political past

Wardlow grew up in Eagan and graduated from Eagan High School before going on to attend Georgetown University in Washington, D.C. for both his undergraduate and law degree (Republican nominee for governor Jeff Johnson also attended Georgetown Law).

After getting his J.D., Wardlow clerked for Minnesota Supreme Court Justice G. Barry Anderson before becoming an associate for a Washington D.C. firm, working under Robert Lighthizer, the current U.S. trade representative. From there he went on to spend six years as an associate with the Minneapolis firm of Parker Rosen before returning Lighthizer’s firm in 2014. Later that same year, he started work as a staff attorney for Alliance Defending Freedom, an Arizona-based Christian legal non-profit that takes on First Amendment cases.

In between, in 201o, Wardlow won election to Minnesota House District 38B (the same district his father, Lynn Wardlow, represented from 2003 to 2008.) After redistricting, Wardlow lost the race for the new 51B to Laurie Halverson, 52 percent to 48 percent. He and his wife Jenny now live in Prior Lake with their three children.

For his part, Ellison has provided plenty of fodder for Wardlow’s line of criticism. Ellison has made numerous statements about how state attorneys general are more important than Congressmen because it is where effective challenges to Trump administration policy has originated. And he previously said he doesn’t plan to step down as deputy chair of the Democratic National Committee (though last week Ellison told WCCO that he would consider resigning if elected.)

“It’s clear to me that we need an attorney general who’s going to focus the office on the rule of law, take the politics of the office,” Wardlow said. “That’s what’s always driven me in my interest in politics and public service generally. I think that there’s a real opportunity here to, to get the office back into shape and focus it on Minnesota and not on national things, not on political things, but rather keeping Minnesota safe and making sure Minnesota’s fair.”

But Wardlow has hardly been a political bystander. He spent two years as a member of the state House of Representatives, and was not known for shying away from taking conservative positions. He argued that the Affordable Care Act was an unconstitutional expansion of federal government powers, for example, calling it “an unconscionable law” that “eviscerates the structure of our constitutional form of government.”

In 2012, he supported two proposed constitutional amendments: One to require a photo ID to vote; and one banning same-sex marriage. Both were defeated at the polls that November. 

After leaving the Legislature, he testified against allowing transgender students to use the restroom that corresponds with their sexual identity. And as a legal counsel for the Alliance Defending Freedom — the client he was representing during the school bathroom hearing — he defended the placement of a cross in a Belle Plaine park and helped represent an Atlanta police chief who said he was fired for stating personal views against same-sex marriage.

In fact, Wardlow is associated with some of the organization’s most high-profile cases, including its defense of Masterpiece Cakeshop owner Jack Phillips, who refused a wedding cake order from a same-gender couple. The U.S. Supreme Court found that the Colorado Civil Rights Commission violated due process by showing bias against Phillips.

While Wardlow portrays the ADF as a legal non-profit that defends attacks on First Amendment rights of citizens, particularly religious freedom, the organization itself describes its mission much more broadly. “It is not enough to just win cases; we must change the culture, and the strategy of Alliance Defending Freedom ensures lasting victory,” it states on its website.

Not pushing ‘any kind of policy view’

Wardlow said he doesn’t think the work he did at ADF would have anything to do with him seeking the attorney general’s office. “The attorney general shouldn’t be a political position and it shouldn’t be positioned as pushing forward any kind of policy view or any kind of advocacy,” he said.

Why wouldn’t Wardlow be expected to do what Republican attorneys general have done at least since the election of Barack Obama: file suits to challenge federal actions it finds objectionable from both a legal and political standpoint? And if so, how is that different from what he accuses Ellison of planning?

In a campaign piece aimed at supporters and volunteers, Wardlow asked them to rank the actions they want him to take if elected. One of those is “Defend President Trump’s agenda in court.” Others are to “prosecute illegal trafficking in fetal body parts” and “investigate and prosecute illegal voting.”

Wardlow said that campaign literature was  aimed at “getting the base fired up… we were soliciting input.” He first said it was asking for suggestions and didn’t say he would do any of those things. But after being read the words on the card “Doug Wardlow will institute these duties when he is your MN Attorney General,” he said he wouldn’t, in fact, take all of those actions.

“I can tell you this, I’m not going to use — and I’ve said this consistently — I’m not going to be doing anything political with the attorney general’s office,” he said. “When we’re talking about President Trump’s agenda, I’m not going to be pushing any particular agenda.”

But Ellison’s campaign has spotlighted a video of Wardlow at the GOP booth at the state fair in 2017 saying he would use the office to go after alleged vote fraud and illegal voting as part of an effort to make the state more Republican.

“If we win the attorney general’s office, which I can do, we can change the political complexion of the state long-term because the attorney general should be going after election fraud,” he said at the GOP forum. “It should be looking into illegal voting; it should be working with county attorneys to prosecute illegal voting.”

A hands-off approach to regulation

Wardlow has also been critical of current Attorney General Lori Swanson, saying he would take a look at cases brought by or joined by the AG’s office and decide whether the state will continue to pursue them. Swanson, for example, joined other attorneys general in challenges to the Trump travel ban and the separation of refugee families at the Mexican border.

“I do think it’s inappropriate — some of the lawsuits that Lori Swanson has brought to obstruct the president’s agenda. So we’ll have to look at those lawsuits and if there are any ongoing, see if it makes sense to continue them. But that would be the case regardless of who is president. It doesn’t matter if it’s a President Trump or some other president. I don’t think it’s appropriate to use the attorney general’s office to do things that are political or try to push any particular policy agenda through the courts.”

Ellison has accused the GOP of seeking to overturn one of the most-popular aspects of the Affordable Care Act: the ban on terminating or not insuring people who have pre-existing conditions. A suit brought by Texas Attorney General Ken Paxton argues that once the Congress ended the individual mandate that all residents have health insurance, something the Supreme Court upheld, the entire law is no longer constitutional. Nineteen other states with Republican-led governments have joined the suit.

Wardlow said he doesn’t know if Paxton should have brought the suit but said he would not have joined in had he been attorney general. “I do not oppose — and actually support — pre-existing conditions coverage, but that’s not really relevant because it’s a policy issue.”

One of the primary functions of the office is consumer protection and business regulation. Wardlow said he would keep that focus but also wants to beef up the AG’s criminal division, which takes on complex prosecutions at the request of county attorneys around the state. He also said he would like to take a stronger role fighting crimes that target senior citizens; against welfare fraud and child care fraud; against human trafficking; and combating the opioid crisis.

“It’s not just a criminal law problem,” he said on Almanac regarding opioid abuse. “It’s a civil law problem.”

He said the criminal division could look at illegal trafficking of “methamphetamine precursors” from Mexico. “There are many different aspects of this problem,” he said. “We can’t just sue a drug company or a big pharmaceutical and think that’s going to solve the problem. It could do a lot of good but there are many other things we could do: prevention, education, we need to do drug courts. A lot of different things.”  

Wardlow also expressed some misgivings about the direction of business regulation in the state. During an MPR interview in the early summer, he criticized the attorney general’s suit against 3M over groundwater pollution in Washington County, describing the suit as harassing the company on “flimsy evidence.”

“We have a tremendously large and growing administrative state,” he said of regulation in general. “I think that’s problematic for a number of reasons. First of all, it burdens job creators and individuals and farmers and workers. But also it undermines the rule of law and it takes away power from our elected representatives.”

“It becomes more problematic when state agencies go beyond their statutory authority or push the envelope and essentially usurp legislative power authority and that does happen. I think there’s a role for the attorney general to play in counseling agencies in the adoption of rules to make sure that those rules comport with the statutes and don’t go beyond them.”

Wardlow has also repeatedly criticized Ellison and other DFLers for the handling of the allegations made by Ellison’s ex, Karen Monahan, regarding emotional and physical abuse. He says it’s a double standard when Democrats in the state and nationally say they believe allegations made by Christine Blasey Ford against U.S. Supreme Court nominee Brett Kavanaugh but are mostly silent on Monahan’s.

“The folks that are opposing Judge Kavanaugh’s nomination and confirmation to the Supreme Court, if they applied the same standard to Mr. Ellison, would need to conclude that he’s completely unfit for the office of Attorney General,” Wardlow said. “And yet I haven’t heard too much from national Democrats or the Minnesota DFL on that score.”

But he also continues to support Kavanaugh’s nomination to the court, while also saying that “it’s very important that anyone who believes that they’re a victim of domestic abuse or sexual assault or anything of that nature has an opportunity to be heard.

“But Judge Kavanaugh isn’t on the ballot here,” Wardlow said. “Keith Ellison is.”