Campaign Beat: Politics, courts and professional misconduct

State Attorney General Austin Knudsen is making headlines — but not the kind you want when you’re seeking reelection. Two state Supreme Court candidates are hoping to get voters’ attention.

Campaign Beat is MTPR’s weekly political analysis program. MTPR’s Sally Mauk is joined by Lee Newspapers State Bureau Chief Holly Michels and UM Political Science Professor and Mansfield Center Fellow Rob Saldin. Tune in on-air Saturdays at 9:45 a.m.

Sally Mauk: Holly, State Attorney General Austin Knudsen has been making lots of headlines in recent weeks and not the kind of headlines someone running for reelection wants. This week, he’s been defending himself against charges of professional misconduct.

Holly Michels: Yeah, Sally. This all has its roots in a 2021 standoff between the state Legislature, specifically Republicans in the Legislature, and the Judiciary, especially the state Supreme Court. Getting into the background of all of that would take much longer than we have for this show, but it really boils down to the basics of Republican lawmakers were concerned when they learned judges in the state, including Supreme Court justices, were voicing opinions about pending legislation via internal polling. That triggered lawmakers to obtain the state Supreme Court administrator’s emails. That administrator went back to the court to try to claw those back, saying they had sensitive information. They were posted online. That’s what triggered this battle between Republican lawmakers and the judiciary.

Where Republican Austin Knudsen comes in is, his role in that was to defend the Legislature through the court portion of that battle. In doing so, he made several very forceful statements about the Montana Supreme Court saying their impartiality was suspect and claiming that they had bailed themselves out. That’s what the Office of Disciplinary Counsel found objectionable, and they brought 41 counts of misconduct against Knudsen for breaking the rules that require lawyers to not undermine validity in trust in the courts. So that’s the trial that we just saw wrap up in Helena.

Knudsen defended his actions, saying that what he was doing, what his clients, the legislature, wanted him to do by being so aggressive. But in his own defense, he also said that it was a charged, very emotional time and he did wish that cooler heads had prevailed.

The lawyer for the Office of Disciplinary Counsel repeatedly pressed Knudsen in some pretty intense exchanges during his testimony, asking him to admit over and over that his actions violated professional conduct rules for lawyers. Of course, Knudsen said ‘no’ every time he was asked that question.

And his own lawyers, they counter that he was simply doing his job and that his approach in being so forward was warranted given the circumstances at the time. This trial hits right as absentee ballots are starting to reach voters. So, of course, political watchers on either side are really emphasizing this timing, though with the political makeup in Montana, not too sure it’s going to have a ton of effect on the election.

Sally Mauk: AG Knudsen, Holly, also has been criticized by several members of the State Highway Patrol for his leadership.

Holly Michels: Yeah, that’s something else Knudsen is facing tough press about recently. There’s new reporting by the Daily Montanan that includes interviews with several former Highway Patrol troopers, including higher ups within the division, sharing their frustrations at how he ran the patrol. And this comes after over this summer, we saw comments in an internal survey done among troopers, also raising concerns about Knudsen’s leadership.

In this most recent reporting, the former colonel who led the patrol was really sharply critical of Knudsen, as were several other long term troopers. There is concerns of micromanaging, a lack of respect for the chain of command, tense relationships between leadership and more. They also reference really poor morale and a crushing workload and a lot of the vacancies within the patrol. So, it’s another challenge that Knudsen is facing this election cycle.

Sally Mauk: Rob, former Republican Attorney General Tim Fox has sent out a cryptic tweet that seemed to be an indirect criticism of Knudsen, implying he’s not fit to hold the office.

Rob Saldin Yes, that’s right, Sally. Among other things, Fox clearly seems to be playing something of the role of Montana’s version of Mitt Romney or Liz Cheney or Jeff Flake. These people who once were at the center of the GOP but couldn’t abide the Trumpification of their party. And it’s got to, in some ways — the developments over the last decade — be especially tough for someone like Fox. There was a time when lots of Montana politicos thought he was very likely to succeed Steve Bullock as governor, and he had a reputation when he was attorney general as being particularly an ethical figure and so on and so forth. But by the time 2020 came around, the party had shifted and Gianforte beat him by quite a lot in the Republican primary. Additionally, in that same cycle, Fox’s protege John Bennion was similarly expected by a lot of us to take over as attorney general, but he too was soundly defeated in the primary. By the time that primary came around, it was pretty clear that the Republican Party had shifted. But it did represent a real major change from where we thought the Republican Party was at just, you know, five years before that. In that particular case, Bennion was defeated by none other than Austin Knudsen.

Sally Mauk:  This time around Rob, Knudsen is being challenged by Democrat Ben Alke, a not well-known Bozeman attorney. Despite Knudsen’s bad headlines, Alke is facing an uphill climb to win the AG race.

Rob Saldin For sure. Knudsen is is clearly a favorite to win a second term. I do doubt that the events from this week will make much of a difference. In fact, Sally, you’ve described them as bad headlines for Knudsen, but I actually think they could serve to help Knudsen with his base. For many Republican voters. All these issues that have swirled around Knudsen — not just this week, but there have been many others — these aren’t necessarily liabilities. On the contrary, I think they may be part of what his supporters like. They see Knudsen as a fighter and he has all the right enemies. That matters way more than behaving decently or upholding neutral standards or some pious attachment to the rule of law. In fact, those kinds of things are all signs of weakness from this perspective. So for a significant portion of his base, these aren’t dishonorable ethical failings or abuses of power and they certainly don’t make them think about voting for the other guy. They aren’t even things that they have to kind of uncomfortably make their peace with. Rather, this is precisely why they like Austin Knudsen.

Sally Mauk: There are two state Supreme Court races in this election, Holly, one to replace retiring Chief Justice Mike McGrath and one to replace retiring justice Dirk Sandefur. Eastern Montana District Court judge Katherine Bidegaray is running for Sandefur’s seat and a group called Montanans for Liberty and Justice has this ad out.

Ad: Judge Katherine Bidegaray has proven she will defend our public lands. Dan Wilson? Well, he has no public lands decisions of record. Dan Wilson is backed by groups that want to limit or prohibit our access to public lands. Supporters even pushed a plan that would benefit private landowners over our access to public lands. We can trust Judge Katherine Bidegaray to protect our constitutional rights. Vote Katherine Bidegaray and keep politics out of our courtrooms.

Sally Mauk: And that phrase, Holly, ‘Keep politics out of our courtroom’ is a key phrase in these Supreme Court races.

Holly Michels: It is something we’re hearing a lot from all the candidates, Sally. But of course, politics more and more is determining how people vote in these judges races, and ads like this Bidegaray one, they’re tricky to do in Supreme Court races because candidates can’t really do the things that candidates in other races can do, which is come out and say, ‘this is where I stand on a certain policy’, or ‘I like this specific legislation’. There’s rules that bar judicial candidates from doing that. But in Montana, like everywhere else, judges’ races are becoming way more political. And there’s a lot of efforts to really signal to voters where someone might fall in the political spectrum.

If you remember, we saw the state GOP for the first time two years ago make endorsements in Supreme Court races to try to help people identify which judges, if you’re a Republican, you should back. And this ad for Bidegaray, is a way to sort of let people know where she is. She’s a judge in the district that covers Dawson, McCone, Prairie, Richland and Wibaux counties. And from her role as a judge, she can point to rulings she’s made. There’s one specifically she’s highlighted through this race, which is against a copper mine near the Smith River. She’s saying that’ll show people she’ll protect public lands, which, of course, is a very popular issue in Montana. This ad is also saying that Dan Wilson doesn’t have the same record of rulings that would protect access to public lands or preserve their integrity. It’s also saying he’s received campaign donations from oil and gas groups and other organizations that have pushed to limit access to public lands. So this is the path for judicial candidates like Bidegaray to really signal to voters who increasingly are making decisions based on partisan affiliations, where they stand in a race.

Sally Mauk: Rob, These court races fall under the radar for voters because of all the oxygen that congressional races get. But I think one could argue there are no more important races on the ballot.

Rob Saldin Absolutely, Sally. There is just plenty of language in the state constitution that can plausibly be interpreted in more than one way. Think, for instance, about our right to a clean and healthful environment. Well, what does that general language actually mean when applied to a very specific, complicated case? Or how about the right to privacy? Well, it’s the court that frequently ends up deciding that stuff. And there is no way of getting around the fact that it just matters a great deal who is on that court? There are only seven members, so replacing two of the seven is a big deal.

One of the broader dynamics in state government over the last several years is that the Legislature and the governor have created many laws that have subsequently been struck down by the Supreme Court on the grounds that they’re not constitutional. That has made Republicans furious, as we’ve talked about plenty and as we talked about even earlier in this show — they see the court as their last impediment to getting what they want on a whole range of issues. I think it’s safe to say that the two departing members from the court have been favorites of a lot of Democrats in the state. So Republicans definitely see this election as a prime opportunity to alter the balance on that Court in a way that’s more favorable to them. And meanwhile, Democrats see the Court as the last line of defense against an unrestrained Republican agenda.

Sally Mauk: Holly and Rob, we’re out of time this week. Thank you.

Campaign Beat is MTPR’s weekly political analysis program. MTPR’s Sally Mauk is joined by Lee Newspapers State Bureau Chief Holly Michels and UM Political Science Professor and Mansfield Center Fellow Rob Saldin. Tune in on-air Saturdays at 9:45 a.m. Subscribe wherever you get your podcasts.