Idaho solicitor general ‘not sitting in a corner’ while he waits for bar results | Opinion

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Idaho Solicitor General Theo Wold took the Idaho bar exam at the end of February and is awaiting results.

Until then, though, he’s unable to be the signing attorney on legal documents or argue cases in court on behalf of the state of Idaho.

Wold said that he wants to assure the public that, even though he doesn’t have his license in Idaho yet, he isn’t “just sitting in a corner” not doing any work.

The issue of whether Wold has a license to practice law in Idaho has been floating around the Capitol ever since he was appointed solicitor general in November. Wold was first admitted to practice law in early 2013 and remains in good standing in California, with which Idaho does not have a reciprocity agreement. The issue of Wold’s license to practice law in Idaho rose to the surface last week, when Rep. Ned Burns, D-Bellevue, raised the issue on the House floor, where representatives sent the Attorney General’s Office’s budget back for revisions.

The issue is relevant, especially since the Attorney General’s Office is asking for 11% raises for attorneys and staff, according to Idaho Capital Sun reporter Clark Corbin, who also reported that Wold’s salary is $158,000 a year.

Not that I think $158,000 is a huge amount for an attorney, but it’s fair to ask from a taxpayer perspective whether we should be paying that much money to the second highest-ranking lawyer in state government who can’t even practice law in Idaho.

Wold and I had a wide-ranging conversation Thursday. He answered my questions about his license to practice law in Idaho, his job duties and the makeup and role of the solicitor general’s office.

Wold said he has been reviewing 10-15 requests a day to join a legal case, file an amicus brief or sign on to an oversight letter to a state or federal agency. He said he’s evaluating those requests as they come in, communicating with other offices across the country and determining what’s the best use of the Idaho Attorney General office’s resources.

Wold said that although he may not be the signing attorney on filings or arguing on behalf of the state in a courtroom, he’s actively working with the office’s attorneys on crafting legal arguments.

Finally, he said he’s spending a lot of time during the legislative session with legislators, answering questions and giving feedback on legislation to avoid court challenges.

Background on solicitor general

Wold was appointed in November by Attorney General Raúl Labrador after Labrador defeated longtime incumbent Lawrence Wasden in the November election.

Wold, who has a law degree from Notre Dame, held multiple positions in the Trump administration, as acting assistant attorney general in the Office of Legal Policy at the Department of Justice, and as deputy assistant to the president for domestic policy. He also served as deputy chief counsel to U.S. Sen. Mike Lee, R-Utah, on the Senate Judiciary Committee.

He also worked with then-Rep. Dorothy Moon, R-Stanley, on an elections restriction bill in the 2022 session, according to the Idaho Capital Sun. That bill would have eliminated voter affidavit verifying identity at the polls on Election Day, eliminated student IDs as an acceptable form of ID to vote and eliminated Idaho’s same-day voter registration option at the polls. The bill never made it out of committee, but pieces of that legislation, such as eliminating student ID, are making their way back through the Legislature this session.

Labrador revived the position of solicitor general, a position Idaho used to have and several other states still do. A solicitor general is typically the top appellate advocate for the state, defending state laws in state and federal courts.

During the campaign, Labrador said he was bringing back the solicitor general position to prepare cases for trial and navigate the federal court system with the goal of winning cases if they are appealed.

Labrador pointed out that U.S. Sen. Ted Cruz, R-Texas, rose to prominence as the Texas solicitor general who successfully defended Texas law that expanded the Second Amendment and was enshrined in the U.S. Supreme Court’s now-famous Heller decision.

Wold said his goal is to have a total of five attorneys in the solicitor general’s office, including him, a chief deputy and three attorneys. He’s hired a chief deputy, Josh Turner, who’s representing Idaho in the Texas lawsuit over water regulations, and he’s working on hiring three attorneys. In the meantime, he said he’s working with the civil litigation division of the Attorney General’s Office on cases.

Priorities

Wold said he’s making decisions on what cases to join based on the values of the state of Idaho, which he said include natural resources and dealing with Idaho’s burgeoning tech industry.

To wit, the Idaho Attorney General’s Office joined Texas in a lawsuit against federal water oversight rules and joined 46 states in asking a state court to order TikTok to produce records in a state investigation. But a look at other decisions in the past two months shows another set of priorities, as well:

  • joined a 21-state amicus brief arguing in favor of a Louisiana photographer to deny services to photograph a same-sex wedding

  • joined a brief in support of a U.S. Postal Service employee who did not want to work a Sunday shift for religious reasons

  • joined an amicus brief in defense of a church that fired an employee on political grounds and

  • joined a brief in support of a West Virginia law that prohibits transgender women from participating in women’s sports.

Wold echoed something Labrador said during the campaign: The attorney general is a political office popularly elected and shouldn’t pretend otherwise.

That’s always been a concern and a criticism of Labrador, that he would turn the office into nothing but partisan politics, joining lawsuits, defending culture war legislation and making political statements aimed at scoring points for his next political aspiration, whether that’s Idaho governor, U.S. senator or something else.

Wold made the distinction between political and partisan.

“The articulation of the law should be nonpartisan,” he said. “The law is the law.”

But as I pointed out to him, the law is malleable, subject to shifting political winds. For 50 years, for example, we all thought the right to an abortion was a fundamental human right to privacy protected by our Constitution.

But the last president installed three conservative U.S. Supreme Court justices who tipped the scales in favor of overturning that previously understood legal right.

Is gay marriage next? Library books? Transgender rights?

My colleague Bryan Clark noted in a recent column that Wold spoke at a National Conservatism Conference in September in Miami — yes, that same conference where fellow Claremont Institute fellow and Boise State University professor Scott Yenor called women with careers “more medicated, meddlesome and quarrelsome than women need to be.”

“There are American principles,” Wold said in his speech, “and we should not be sheepish in demanding that companies adhere to them, including by constructing a legal regime — whether on immigration or fetal research or any number of other issues — that forces them to.”

When I asked him about that, Wold sounded more like a “leftie,” talking about using the power of the government to protect the little guy from big corporations.

“The free market doesn’t mean corporations get to operate outside the law and take actions that are deleterious to American citizens,” he told me.

In his speech, Wold talked about corporations polluting rivers, squashing family businesses and selling drugs to working-class neighborhoods.

Regarding the whole polluting rivers thing, it’s worth pointing out that Wold and the team at the Idaho Attorney General’s Office is suing the federal government over water regulations and that Wold scored a victory Monday when a sympathetic judge agreed to temporarily exempt some state waters from the Clean Water Act.

‘Counterinsurgency’

It’s easy to see how Wold’s belief system can slide into culture war issues, though, where “protecting” American citizens becomes a war against diversity, equity and inclusion, free expression, library books and public education. In his speech, he talked about protecting workers from the “excretions” of diversity and inclusion and “protecting children from sexualization at school.”

“American principles” can have different definitions depending on your political leanings. One man’s civil liberties is another man’s battle against “wokeness.”

Wold’s talk to the National Conservatism Conference was titled “ESG: Greed Beyond Profit,” making the case against environmental, social and governance standards as part of investment strategies. He suggests that gender-affirming care for teens is a plot by “Big Pharma” to generate business.

Wold believes in “fighting principle with principle” and using the government to do it.

“This is understanding the war for what it is and meeting the left with a counterinsurgency of our own,” he said in his speech.

He claims “the Left controls nearly every institution in this country.”

Therefore, the only way for conservatives to fight back is to wield the power of the government, which seems antithetical to the idea of conservative and limited government. He applauds Florida Gov. Ron DeSantis for using the power of the office to fight Disney, for example.

The concern, and it’s a legitimate one, remains that Labrador brought on a smart and savvy, politically motivated lawyer like Wold to navigate the federal court systems, make Idaho a test for high-profile cases that will make it to a sympathetic U.S. Supreme Court and land Labrador on the front pages of newspapers, a villain on Rachel Maddow and a DeSantis-like hero on Fox News.

While we wait to get the results of Wold’s bar exam results, I’m sure there are many who are hoping he doesn’t pass.