By Matthew Barakat, The Associated Press
FALLS CHURCH, Virginia (AFP) – Critics of outgoing Virginia Attorney General Mark Hering say he bent the law to suit his political goals. Not surprisingly, herring sees it differently.
“I have always tried to use the powers of the office for good and do as much good for people as possible, which is why I am making the most of my tenure as attorney general,” Hering said in a phone interview.
Indeed, the state’s top law enforcement official was recognized for seeking to legalize same-sex marriage – before it was upheld by the US Supreme Court – to defeat then-President Donald Trump’s travel ban that focused heavily on Muslim countries, and to ensure the return of a student who was barred from entering Country back from Turkey.
Herring took off during the last days of his tenure with a series of advertisements. Notably, on Thursday he finished a comprehensive review of attorney general legal opinions over the past century, formally rescinding 58 opinions from Jim Crow and the era of massive resistance that had been used to advance legal segregation and other racist policies.
Herring was elected to the seat over his Republican opponent in 2014 by the narrowest of margins, surviving a recount with just 907 votes from more than 2.2 million ballot papers.
At the beginning of his tenure he was faced with an important decision. The attorney general’s office was defending a state law banning same-sex marriage. The herring overturned the state’s legal position, telling the judge that the law should be repealed.
The law, a southern state milestone, was repealed, and a few months later, the US Supreme Court ruled nationally that the ban on same-sex marriage was unconstitutional.
Hering says the victory is one of many that allow him to leave office with a sense of satisfaction. He also cites his success in legalizing marijuana, eliminating the backlog of more than 2,600 untested rape kits, and along with other state attorneys general, in defending the Affordable Care Act.
Herring’s Minnesota counterpart, Keith Ellison, says Herring has been a leader in several multi-state legal proceedings. In particular, he cites Hering’s efforts to defeat then-President Donald Trump’s travel ban that focused largely on Muslim countries.
“When Mark came out and got his first preliminary injunction, it was a very important statement for human rights in America for equal protection,” said Ellison, a Muslim. “It was an amazing thing and he drove it and did a great job.”
Hering says his efforts to fight what he calls Trump’s “Muslim ban” have been particularly satisfying. He visited Dulles International Airport early after the first ban was put in place to see what was happening, and he was shocked by the suffering of families who had been separated.
He also remembers how his office successfully fought to secure the return of a George Mason University student who had been stranded in Turkey after the United States prevented her return.
“When we were finally able to get her back, I met her at the airport,” Hering said. “She said it was something she thought might happen in her home country Libya, but it has never happened in the USA.”
In the end, two versions of Trump’s travel ban were rescinded; A third copy, modified and weakened, was allowed to stand. Herring acknowledged that the legal victory was not a complete victory, but said he also sent a message “to my colleagues in Virginia that they were living in a commonwealth where there was a prosecutor who would stand up and fight for them”.
While leaving his position, Hering admitted that he had unfinished business. Specifically, he cites ongoing legal efforts to enact the Equal Rights Amendment. The Virginia legislature adopted the amendment in 2020, which made Virginia, by some statistics, the 38th and final state needed to enact the law under the Constitution. So far, though, the courts have said Virginia’s ratification came after a deadline set by Congress for accreditation.
It is unlikely Hering’s successor, Republican Jason Millais, will continue to press for the enactment of the amendment. Indeed, Herring acknowledges the risk that Miyares will reverse many of the positions he took, just as Herring mirrored the positions of his predecessors from the Jim Crow and Massive eras.
“If he changed his position on an issue, he would have to explain it to the people of Virginia,” Hering said.
Herring was preceded in the post by Ken Cucinelli, a Republican who later served as a high-ranking official in the Trump administration.
Cuccinelli mistook Hering, as did other Republicans, for using the office to “awaken the signal of virtue” unrelated to the law. His refusal to defend the ban on same-sex marriage approved by voters in the 2006 referendum is a case in point.
“AGs are not supposed to make laws,” Cucinelli said in a phone interview. “I don’t think Mark Hering has informed me of my reservations in this regard.”
Herring says he followed the law, but with the zeal of his defender.
“It has always been about how you use the powers of the law, how you can use the law to help people and improve their lives,” he said.
The biggest controversy of Hering’s tenure came in 2019, when he and the entire Democratic leadership of Virginia were mired in scandal. It all started with Governor Ralph Northam’s medical school yearbook discovering an image of one man in black and another in the Ku Klux Klan.
Several Democrats quickly called for Northham’s resignation, including Herring. But then Herring was forced to admit that he wore the black face once in college. He apologized but the incident was not forgotten.
“I’ve talked about it a lot,” Hering said, adding that he must ultimately be judged by his actions in pursuit of racial justice.
The attorney general position has long been a stepping stone to a higher office in Virginia, and Hering surprised many when he passed twice in a gubernatorial bid for reelection. Now 60, he is noncommittal about his plans for a future political office.
“I know there will be a lot of great options available to me,” he said. “I’m really excited to write what the next chapter will be like.”
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