Escalating Conflict

"Whatever the merits of this case may be, moving the complaint forward is sure to only inflame rather than mend a bitter feud between co-equal branches of Montana government."

Explosive news this month revealed a formal complaint requested by the Judicial Branch’s Office of Disciplinary Council (ODC) accusing Attorney General Austin Knudsen of 41 counts of professional misconduct. The complaint alleges that Knudsen “undermined public confidence” in the judicial system due to his office’s “contemptuous, undignified, discourteous and/or disrespectful” communications during a heated legal dispute between the judicial and legislative branches in 2021.

While allies of the judicial branch assure the public there are no political games afoot, allies of Knudsen are characterizing the complaint as a politically motivated hit job by courts that can’t handle criticism.

Whatever the merits of this case may be, moving the complaint forward is sure to only inflame rather than mend a bitter feud between co-equal branches of Montana government. As this conflict boils over, public confidence in the impartiality of Montana’s judiciary will surely be shaken more than it is already.

Let’s be honest with ourselves for a moment and recognize that Montana has tilted deep red in the last decade. Republicans have flipped all but one statewide office from Democrat control and achieved a legislative supermajority. For his part, Attorney General Knudsen was elected with over 58% of the vote, receiving the second most votes of any statewide or federal candidate on the ballot.

There is undeniably a large contingent of this vast and relatively new Republican majority who, rightly or wrongly, view the judiciary as completely out of step with the state’s values. This majority perceives the courts as unfairly thwarting conservative priorities like school choice, gun rights, and reliable energy production while going out of their way to support leftwing priorities like climate change. They witness their preferred judicial candidates be outspent in campaigns two-to-one by labor unions, trial attorneys and radical environmental groups. To many in Montana’s Republican majority, the judiciary represents the last vestiges of decades of Democrat control.

For those Republicans, advancing a 2021 complaint about a sitting Attorney General two years after the fact – just as election season happens to be ramping up – is a decision that absolutely reeks of politics. The Montana Republican Party has already issued a statement pointing out the partisan connections of the ODC and the Commission on Practice (COP) that will now decide whether to recommend disciplinary action. According to the MTGOP, the ODC’s special counsel appointed to lead the complaint case is “a longtime Democrat donor and activist” and members of the COP have donated more than $50,000 to “Democrat and liberal judicial candidates.” Knudsen’s office characterized the complaint as political persecution, responding “no one should be persecuted for holding a different opinion than those in power.”

These points will resonate with the 58% of Montana voters who supported Knudsen, further entrenching suspicions about a partisan agenda from the judicial branch. The timing, the partisan connections, and the complex nature of the charges all will make it extremely challenging to persuade the voting majority that this complaint against Knudsen is about anything other than politics.

For those of us hoping for a solution that will restore public confidence in the impartiality of our courts while de-escalating the conflict between the judiciary and the two republican-controlled branches of state government, advancing this complaint against Attorney General Knudsen is not it.

Famed psychoanalyst Carl Jung once said if you cannot understand why someone did something, look at the consequences and infer the motivation. The only certain consequence of advancing this complaint is to infuriate Knudsen and put Republicans on defense during election season. What motivation should we infer from this?

The column originally appeared in Lee Newspapers.