Democratic attorneys general gear up for return of Trump court battles

By Tierney Sneed, CNN

Washington (CNN) — When the frequent court foes of Donald Trump’s first administration look back at the early days of his presidency, they recall “building the airplane as we were flying it,” as outgoing Washington Attorney General Bob Ferguson has described it. That was especially true of the intense and quick-moving court fight over the so-called travel ban, a seminal 2017 lawsuit that set the tone for four more years of legal confrontations.

None of the Democratic state attorneys general who originally took Trump to court over that controversial policy will still be in office when he is inaugurated next month. But their successors won’t be starting from scratch this time around, even amid a different legal landscape and political climate from Trump’s first term in office.

They have been preparing for months, if not years, for what kind of lawsuits they might want to bring against a Trump 2.0 agenda. They’ve done so as the president-elect and his deputies have promised a more sophisticated and less error-prone operation this time.

Democratic officials and their staff have pored over Trump’s campaign promises as well as the proposals outlined in Project 2025, the policy handbook assembled by a conservative think tank that was written by several veterans of the Trump’s first administration, some of them now nominees for his second.

They’re adjusting the legal strategies that were used against Trump during the first go-around to take into account shifts in court precedent since then, while also acknowledging a political reality that gave Trump a more decisive electoral win than in 2016.

“There was a much clearer voice of the people. And one of the jobs I have is to understand what’s behind that,” Colorado Attorney General Phil Weiser told CNN. “Insofar as the administration pursues policies that are lawful, that’s their right to pursue lawful policies.”

In some states, the current attorneys general have been serving in the role since the back half of Trump’s first presidency — giving them more than a taste of what litigating against his administration is like. Others have inherited office staff who helped craft the marquee legal challenges of his first term, and four Democratic attorneys general will be serving in states where their governor held that role in the last Trump presidency.

The planning has involved internal briefs laying out different litigative options for challenging certain Trump proposals, as well as analysis of how recent court precedents should weigh on those decisions.

Washington’s attorney general-elect, Nick Brown, has been reading up on how key legal doctrines such as standing have shifted since the first Trump administration. The day after the Supreme Court overturned Roe v. Wade in 2022, California Attorney General Rob Bonta asked his staff to draft potential strategies for how his state could challenge a national abortion ban.

Democrats are anticipating sharp battles over mass deportation, abortion access, the environment and consumer protection, among other issues. Compared to Trump’s 2016 campaign, the president-elect and his allies have been “a little bit more predictable with specifics,” Bonta said.

“We expect him to do what he says,” added Bonta, who was in the California legislature during the first Trump presidency. “We’ve been through this once at 1.0 and understand a lot of the places where he broke the law.”

‘Not going to lash out for the sake of lashing out’

During the first Trump administration, the number of state-brought legal actions against the federal government totaled in the triple digits, and those court fights made national stars of those officials leading the legal resistance. Pennsylvania Gov. Josh Shapiro, who was the state’s attorney general in 2017, was on the 2024 Democratic vice presidential short list. The Democratic governors in Kentucky, Maine, Massachusetts, and, come January, in North Carolina and Washington, are former attorneys general who battled the first Trump administration in court as well.

They bring to the governor’s mansion knowledge and experience of how to duel with Trump in court — experience that will benefit the lawyers serving in their current roles. As governors, they can help secure funding and propose other legislation that will buttress the work of state attorneys general.

Having former Massachusetts attorney general Maura Healey in the governorship for the second Trump term is “actually critical,” the commonwealth’s current attorney general, Andrea Joy Campbell, told CNN.

Ferguson, who was elected Washington’s governor, joined his successor, Brown, at a post-election news conference last month at which both Democrats said threats of revenge by Trump would not influence decisions to bring cases. Trump reportedly sat on a Washington request for wildfire disaster aid in 2020 — a request that ultimately fulfilled when President Joe Biden took office.

“If people are being harmed, if the law is being violated, we should enforce that, without fear of retribution,” Brown said.

But that does not mean that Democratic attorneys general plan to fight Trump on every issue. They told CNN that, while they will probably disagree with many of his policies, they’ll only sue when the legal circumstances warrant it.

It’s a needle they will have to thread while trying to work with the Trump administration on other issues that have had bipartisan support, such as addressing the opioid crisis or bringing antitrust actions against social media companies. The day-to-day of law enforcement typically requires coordination between state and federal agencies as well.

“My office has been able to partner at the local level with these agencies, and I want to preserve that, regardless of who’s president,” Illinois Attorney General Kwame Raoul told CNN. “I am not going to lash out for the sake of lashing out.”

He and other attorneys general emphasized, however, that when they believe that the incoming president has violated the law in a way that is harming residents of their states, they are committed to taking him to court.

“To the extent that there was a strong mandate here for the administration, it was specifically on cost of living,” said Josh Kaul, the attorney general for Wisconsin, which went for Trump this year. “I don’t think a lot of folks who voted for the Trump administration did so because they wanted people’s rights to be taken away.”

Asked for comment for this story, Trump transition team spokesperson Karoline Leavitt said in a statement that “President Trump will serve ALL Americans, even those who did not vote for him in the election. He will unify the country through success.”

Shifts in the legal landscape

The relationships that state attorneys general forged among themselves during the first Trump administration continued through the Biden years, and several months ago, those cross-state conversations turned to Trump’s possible return.

Part of those discussions has been understanding which state is best suited to take the lead on a legal challenge, perhaps because of its expertise on the issue, how the policy uniquely affects its residents or where the state sits on the federal circuit court map.

The Democratic Attorneys General Association — an organization that had just a handful of employees at the beginning of the first Trump term but now numbers 40 among its staff — organizes regular Zoom calls and in-person confabs to keep the dialogue going.

The discussions for a potential second Trump term began in earnest at the organization’s February conference in Seattle, DAGA president Sean Rankin told CNN. At a conference in Philadelphia two weeks after the election, the organization carved out time for the current and incoming Democratic attorneys general to speak to one another in private, without the presence of DAGA staff, and another in-person conference is planned for February, weeks after the inauguration.

One issue the attorneys general must confront is how recent changes in law and in the judiciary will weigh on their legal calculus. The Supreme Court is more right-leaning now than it was at the start of Trump’s first term, with his installation of three justices. One of them, Justice Amy Coney Barrett, replaced the late liberal Justice Ruth Bader Ginsburg at the end of 2020.

Meanwhile, lower court judges, taking cues from the high court, have been more hesitant to issue the sort of nationwide injunctions that blocked Trump policies throughout the country in a single case.

On the flip side, however, is a series of Biden-era Supreme Court rulings that require courts to give more scrutiny to actions taken by executive agencies, including one 2024 ruling that reversed longstanding deference that judges gave to how agencies interpreted vague laws. Democrats say they intend to see those precedents applied fairly, even if they have been critical of how the court’s conservative wing has undermined federal regulatory power.

“They have made their bed, and they’re going to have to lie in it,” Connecticut Attorney General William Tong told CNN. “And if there’s no deference to the EPA under Lee Zeldin, or to the Department of Homeland Security under Kristi Noem, then there’s no deference.”

Where the biggest courts fights will play out will likely shift as well. The US 9th Circuit Court of Appeals, the long-favored venue of Democrats that covers the Western swath of the country, is not as nearly liberal as it was at the beginning to the Trump administration after he appointed 10 judges to the court. The First Circuit, covering the upper Northeast, will likely be the safest bet for Democrats, as it currently has no Republican appointees among its active judges after Biden’s judicial overhaul.

Amid all these changes, Democrats are quick to bring up the win rate that their offices had during the first Trump administration, with some states prevailing in 80% or more of the cases they brought against his first-term agenda. That courts so frequently found that Trump had run afoul of the law makes the attorneys general confident that they’ll be successful again in the legal battles they pick with his second administration, even in a different judicial landscape.

“The circuits have changed. The Supreme Court has changed,” New Jesey Attorney General Matthew Platkin told CNN. “But they’ve also sided with the rule of law in many instances, and I predict they will again.”

The-CNN-Wire
™ & © 2024 Cable News Network, Inc., a Warner Bros. Discovery Company. All rights reserved.