When he was in the Missouri Senate, Eric Schmitt had a reputation.
The Republican from Glendale was the guy you visited last. Schmitt’s a nice guy, who gets along with people on both sides of the aisle. He sometimes finds himself on both sides of an argument, but doesn’t always want to let people know where he stands on an issue. So lobbyists knew that if they visited with him early on an issue he might nod along and seem like a yes vote until the guy waiting outside his third-floor office on the Capitol came in and got him leaning the other way.
So it has been in Schmitt’s short tenure as the appointed attorney general. He came out of the chute as an advocate for criminal justice reform, filing a fire-breathing amicus brief in the case that was a precurser to a unanimous Missouri Supreme Court decision upending a longstanding debtors’ prison scheme.
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But then, a couple of months later, he fought to keep a man in prison who was there because of the application of the same scheme Schmitt opposed. He backed off after I pointed out the contradiction in a column.
Later, Schmitt found himself on both sides of the First Amendment. In a case involving public officials in southeast Missouri, suggesting that the First Amendment somehow allowed some public records to be withheld from discovery in a lawsuit. It was around the same time that the man who appointed him as the attorney general, Gov. Mike Parson, was making a similar argument to avoid Sunshine Law disclosure.
Schmitt quickly backtracked, , and later gently urged Parson to give up the argument, too, while refusing to issue an official opinion on the topic, as requested by state Rep. Peter Merideth, D-St. Louis.
For much of this year, Schmitt has found himself on both sides of another issue: the importance of prosecutorial discretion. First he was against it. Then he was for it. Now he’s against it again, at least if it’s being used by a Black prosecutor in St. Louis.
Schmitt’s arguments with himself started last August, when St. Louis Circuit Attorney Kimberly M. Gardner filed a motion for a new trial for Lamar Johnson, who had been convicted of murder in 1995. Gardner alleges, as does the Midwest Innocence Project, that Johnson was convicted on perjured testimony and prosecutorial misconduct. He’s innocent, they say. The judge wouldn’t grant the hearing and appointed Schmitt to supersede Gardner’s authority.
Schmitt argued before the Missouri Supreme Court that Gardner doesn’t have the discretion to seek a new trial for a man already convicted, even if she believes he’s innocent.
Then Michael Flynn happened. U.S. Attorney General William Barr sought to rescind the prosecution of President Donald Trump’s former national security adviser, who had already pleaded guilty to lying to the FBI. The judge, in a move similar to the one made in Johnson’s case, wouldn’t let Barr do it.
Enter Schmitt and his fellow Republican attorneys general, demonstrating their Trumpist loyalty. In an amicus brief, Schmitt argued that prosecutorial discretion was sacrosanct.
“The decision to charge is often a prosecutor’s most-noticed act, but the most consequential decision is often the decision not to pursue charges. Our system depends on prosecutors’ ability to make this decision unimpeded,†the AGs wrote.
You can almost see a parenthetical remark inserted by Schmitt in the brief in disappearing ink: “… unless the prosecutor is named Kim Gardner.â€
The brief went further, stating that if voters didn’t like a prosecutorial decision, they could make the change at the ballot box. Gardner, despite Schmitt and Parson and their dark-money investors throwing everything they had at her, handily won her primary race on Aug. 4.
So now, having nothing but a few Fox News appearances to show for their efforts, and with COVID-19 raging in Missouri, and Trump’s popularity falling, Parson and Schmitt have turned to the Legislature, asking it for extraordinary powers to do that which Schmitt says must not be done to white Republican prosecutors.
This time, Schmitt’s propensity for flip-floppery, aided by Parson’s political desire to turn Gardner into his electoral Willie Horton, drew even the ire of members of his own party.
On Tuesday, after Parson tried to add Gardner-bashing to his poorly contrived tough-on-crime special session, Speaker of the House Elijah Haahr pumped the brakes, effectively killing the omnibus crime bill that had passed the Senate and starting over, maybe, next week.
Then, the next day, the Missouri Association of Prosecuting Attorneys made it clear that an attack on Gardner’s independence was an attack on every duly elected prosecutor in the state:
“Any attempt to vest the attorney general with jurisdiction to prosecute homicides without the request of the elected prosecuting attorney fundamentally changes our system of local, independent prosecution that has served the citizens of Missouri well since 1875.â€
Had Schmitt spent a bit more time in the courtroom, he would have seen this coming. Instead, he’s been blinded by ambition. Now he’ll face his own judgment in November in his race against Democrat Rich Finneran, himself a former prosecutor. Meanwhile, the Missouri Supreme Court still holds Lamar Johnson’s fate in its hands. The court’s decision turns, in part, on which Eric Schmitt they choose to believe.
Updated at 9 p.m. Thursday to correct the date of the primary election earlier this month.Â