Lawyers, like members of other professions, tend to have overarching standards, both codified and unspoken, about how to do their jobs. Pursue truth. Protect your client. Be overly prepared for questions.
Inherently, attorneys argue their cases within an established legal framework that they’re sworn to uphold. As the Montana State Bar’s code of professional conduct spells out, a licensed lawyer is an “officer of the legal system.”
In other words, there is a playing field. It has rules.
Respect for those rules is at the core of a wave of bewilderment, indignation and ire from Montana lawyers closely watching one of their peers — a man who happens to be one of the state’s most powerful legal figures.
In Montana’s evolving and historically unusual feud between the Legislature and the judiciary, Montana Attorney General Austin Knudsen has openly courted controversy. In the last three months, Knudsen and his staff have been accused of disrespecting the state Supreme Court, disrupting the judicial process and refusing to accept a court order. Outside of court, legal observers say Knudsen has improperly inserted the attorney general’s office into polarizing culture-war issues.
Knudsen isn’t expressing any second thoughts about his actions. If there’s one thing on which Austin Knudsen and his critics agree, it’s that respect for the way things are usually done is not his concern.
TURNING THE TABLES
In mid-April, Knudsen’s office sent a public letter to the state Supreme Court on behalf of its client, the state Legislature. A day earlier, the court had blocked a highly unconventional subpoena from the Legislature seeking thousands of judiciary emails as part of an investigation into alleged misconduct within the court system.
The Department of Administration had already begun to fulfill the request, releasing a flood of emails to Republican leadership within a single weekend. When the Supreme Court quickly blocked that subpoena, the department discontinued the release. But the Legislature, through the attorney general’s office, refused to comply.
“The Legislature does not recognize this Court’s Order as binding and will not abide it,” Chief Deputy Attorney General Kris Hansen wrote. “The Legislature will not entertain the Court’s interference in the Legislature’s investigation of the serious and troubling conduct of members of the Judiciary. The subpoena is valid and will be enforced.”
Punctuating an already extraordinary dispute between separate branches of government, the April 12 letter astounded members of Montana’s legal community, many of whom saw it as an affront to basic professional conduct.
“It’s not consistent with anything I’ve seen in the 25-some years I’ve been around this stuff,” said Jeff Hindoien, deputy attorney general under Knudsen’s predecessor, Tim Fox, and chief legal counsel for former Secretary of State Corey Stapleton and former Gov. Judy Martz. “I mean, you really are arguing over things that very few Montana lawyers will ever get to argue about. It’s the highest level of legal debate in terms of public policy, constitutional framework, that sort of thing. And so, firing off letters like that isn’t something that ought to be occurring in that space. And certainly, to my knowledge, never has before.”
Since that letter was sent, other legal maneuvers by the first-term attorney general’s office have amplified the legal community’s concern.
Montana Free Press interviewed nine former Department of Justice attorneys, two former Supreme Court justices and four additional practicing attorneys who have tracked the dispute. Some of those observers described Knudsen’s actions as “breathtaking” and “embarrassing” for the legal profession. Others said the office’s tactics seem intentionally designed to undermine Montana’s democratic institutions, a strategy they cast as politically motivated and intended to cater to a conservative electorate.
But Knudsen seems unafraid to kick the hornet’s nest. Last month, he waded into a national culture war by advocating against the use of critical race theory in Montana schools. A few weeks earlier, his office touted the dissolution of a state contract with a national law firm because some of its partners have donated to Democratic candidates. Also in May, Department of Justice spokeswoman Emilee Cantrell publicly accused plaintiffs in other lawsuits of appealing to “liberal allies on the court” by filing cases in jurisdictions with unnamed “left-wing judges.” In early June, Knudsen took to Twitter to criticize “an activist judge” in Helena for temporarily delaying implementation of a law that broadens gun rights on university campuses.
The attorney general is responsible for defending challenges to Montana law. How the office does that — and how many splashy statements its leader makes along the way — depends entirely on the preference and judgment of the person elected to do the job.
In a recent interview with MTFP, Knudsen defended his legal maneuvers on behalf of the Legislature and stood by his office’s rhetoric targeting judges. His tone and tactics, he said, are in line with what voters expected when they elected him in November. He defeated Democrat Raph Graybill by 17% of the vote.
“Montanans had the chance to vote for ‘status quo’ a couple different times in the AG’s race. They didn’t do it,” Knudsen said. “Overwhelmingly, I got voted for. I’m an aggressive guy. I think people knew what they were voting for with me.”
In that way, Knudsen agreed that he prioritizes the desires of the electorate over those of “the legal elites here in Helena.”
“Yeah, I guess I’m more concerned about what the voters of Montana think than, you know, a handful of former DOJ lawyers,” he said.
A notable number of his fellow attorneys agree that Knudsen has upended the norms and standards of his office. In doing so, some contend, Knudsen and his staff are undermining the very legal system they are sworn to protect, with potentially profound consequences.
“I always viewed [the attorney general’s office] as, ultimately, a real paragon of professional lawyers in Montana and folks who were really solid, competent professional advocates for the state of Montana,” Hindoien said. “And to see this turn so quickly … is beyond disheartening.”
TAKING ON THE JUDICIARY
Knudsen has made the attorney general’s office a central figure in the months-long clash between the Legislature and the judiciary. The origin point for the interbranch dispute is Senate Bill 140, a measure that gives the governor power to directly fill court vacancies. It was challenged in March by a group of former state officials and the Montana League of Women Voters. The Supreme Court last week upheld its constitutionality in a 6-1 vote.
Supreme Court Chief Justice Mike McGrath recused himself from the SB 140 case in March, having previously urged Gov. Greg Gianforte not to support the legislation. District court judge Kurt Krueger was selected as his replacement. Soon after, the attorney general’s office introduced evidence that Krueger also had expressed opposition to the bill in an internal poll for the Montana Judges Association, the lobbying arm of the judicial branch. Krueger recused himself after the existence of the poll was made public.
News of the MJA poll sparked a flurry of action among Republican lawmakers investigating judicial conduct, including what they regard as the pre-judging of legislation. After Krueger’s recusal, Republicans issued a sweeping subpoena for the emails and records of Court Administrator Beth McLaughlin, who coordinated the MJA polls. McLaughlin admitted she had not retained complete email records regarding those polls, prompting the Legislature to seek the records from the Department of Administration, which maintains state email systems. As judicial branch emails began gushing out of the state agency, McLaughlin filed an emergency motion to block the subpoena in the SB 140 lawsuit, despite the fact that neither she nor the Legislature were parties to the case.
While acknowledging the “serious procedural questions” raised by McLaughlin’s intervention, the court blocked the Legislature’s subpoena, which it found to be “extremely broad in scope” and capable of inflicting “great harm,” citing the possibility of confidential court information related to other cases being improperly released. The Legislature, through Knudsen’s office, called McLaughlin’s motion improper and refused to comply with the court’s order. The Legislature then issued McLaughlin a revised subpoena, which was similarly blocked by the courts.
McLaughlin and her attorney, on April 12, filed a new case before the court to deal exclusively with the question of legislative subpoena powers. Three days later, Republican leadership subpoenaed extensive records and emails from all seven Supreme Court justices directly, an unprecedented assertion of legislative authority.
The justices declined to comply. One, Jim Rice, challenged the subpoena before a district court judge, who eventually blocked it. In court rulings and testimony, the justices said they typically refrain from participating in MJA polls, as they did in the one regarding SB 140. Additionally, the justices said the lawsuit initiated by McLaughlin is about the reach and power of legislative subpoenas, making it impossible for members of the court to fulfill the subpoenas and also rule on the case before them. Rice, having pursued a different legal avenue, later recused himself from the case.
The Legislature, through the attorney general’s office, did not take the court’s refusal quietly. It pushed for the McLaughlin case to be dismissed and, on the same day, filed a motion calling for all justices to recuse themselves, arguing they were “umpiring their own game” by adjudicating a case involving a judicial branch employee, McLaughlin, and their own internal records.
“All Justices must be immediately disqualified to salvage due process and protect the reputation of the Montana Supreme Court,” wrote Derek Ostreicher, general counsel in the attorney general’s office, in the motion. “We are well beyond the point where the Court’s impartiality and independence ‘might reasonably be questioned.’ This is not merely the appearance of impropriety. This is actual impropriety. The Legislature cannot get a fair and impartial trial in this case under these circumstances.”
The motion for recusal received a pointed rebuke from Justice Laurie McKinnon on behalf of the unanimous court. In what legal experts described as an unusual move, McKinnon attributed passages of legal filings to DOJ attorneys Ostreicher and Hansen by name, writing, the “unilateral attempt to manufacture a conflict by issuing subpoenas to the entire Montana Supreme Court must be seen for what it is.” The sweeping recusal motion, she wrote, “appears directed to disrupt the normal process of a tribunal whose function is to adjudicate the underlying dispute consistent with the law, the constitution, and due process.”
Lawyers following the twists of the case saw McKinnon’s opinion as “a shot across the bow” from the court. Some noted the specific language about disrupting the “process of a tribunal,” which echoes a prohibition codified in the Montana Rules of Professional Conduct for lawyers. McKinnon, widely considered one of the court’s most conservative voices, appeared to be telling Knudsen’s office to watch its step.
If so, the message went unheeded. A week later, Knudsen responded to the court’s ruling with another letter, calling the decision to name individual attorneys “nothing more than thinly veiled threats and attacks on the professional integrity of attorneys in my office.” Knudsen then asked the court to refrain from “threatening or maligning the integrity of my attorneys” and invited the justices to contact him directly “to vent any further frustrations” about his office.
Again, former DOJ employees described Knudsen’s letter as profoundly disrespectful.
“For a lawyer and the chief law enforcement officer to lecture the court on the rules of professional conduct … It is extraordinary, it’s remarkable, it’s very troubling,” said Mike Black, a former assistant attorney general who lost his bid for the Supreme Court last fall. “Because it seems like you’re taking on more of a role of being a partisan than you are being a lawyer.”
A week later, Knudsen and the Legislature asked the court to reconsider its original motion for the justices to recuse themselves. The court has not yet responded.
Last week, though, another justice took an opportunity to reprimand the attorney general’s office again. When the court upheld the constitutionality of SB 140, the case in which the interbranch dispute began, Justice Jim Rice released a scathing response to Knudsen’s and the Legislature’s legal tactics. He called the attorney general’s April rejection of the court’s order “obviously contemptuous” and accused the DOJ’s letters of “ignorance of history and long-established legal precedent.”
In a bold comparison, Rice likened Knudsen’s intransigence to that of Andrew Jackson, the seventh president of the United States, whose refusal to accept judicial authority in Worcester v. Georgia set the stage for the Trail of Tears, the forced displacement of tens of thousands of American Indians by the U.S. government in the mid-1800s.
“This tragic suffering was rooted in the arrogance of one man demanding to have his own way, Constitution be damned,” Rice wrote. “While the tears of human suffering fell directly at the feet of Andrew Jackson, what is important for us today is this: ‘[t]hose who fail to learn from history are condemned to repeat it.’ And we have seen history repeated in the Attorney General’s extralegal actions taken in this case.”
In a statement issued that evening, Knudsen’s spokeswoman, Emilee Cantrell, dismissed Rice’s opinion as an “emotional rant” meant to “distract from his own inappropriate behavior in this case.” Asked by MTFP to explain what behavior she was referring to, Cantrell said, “Everything we’ve been talking about all along.”
‘WE GOT THIS MESS’
In interviews with MTFP, former government officials, attorneys and retired judges said watching the branches of government exchange blows through legal filings has been “unbelievable.” Some said the court had erred in selecting Krueger to replace McGrath, and should have a clear policy in place on email retention. Others said both the Legislature and Knudsen’s office failed to make any meaningful effort to de-escalate with the judiciary, instead opting for partisan drama.
“It’s not casting any of the institutions in a good light,” said Mark Parker, a longtime Billings attorney and former president of the State Bar of Montana.
“You’ve heard the phrase ‘sunshine is the best disinfectant’? Well, sunshine is also the principal cause of melanoma,” Parker said. Now, he said, “we got this mess. In my view, it has tarnished the reputation of every single branch of government at a time when that’s the last thing they need. There’s going to be some hard feelings going forward, and it’s too bad.”
There is an established route for reporting and challenging misconduct by judges called the Judicial Standards Commission. Some former DOJ attorneys emphasized it as a critical way to hold judges accountable and maintain integrity in the legal system. Despite repeated claims of wrongdoing, Republicans in the Legislature have filed no complaints with that commission. Knudsen told MTFP that the Legislature hasn’t ruled out filing such complaints in the future, but said coordinating with lawmakers has become a “logistical problem” since the Legislature adjourned.
Knudsen has also said his client would prefer to engage in negotiations about the Legislature’s subpoenas rather than have “a big public open drama” in court, particularly when the stakes are so high.
“There are serious constitutional questions here, no doubt,” Knudsen said. “But again … you’ve got coequal branches of government here. You’ve got a Legislature that is acting under its duly given constitutional authority to issue subpoenas … And then you’ve got another supposedly coequal branch of government saying, well, no, you can’t do that. No, we have the power to tell you what your authority is. That’s going to create a rub. And that’s what’s happened here.”
Yet some legal observers point to Knudsen’s tactics, particularly his pattern of sending letters to the court, as distinct from the constitutional debate and central to the escalating tensions with the judiciary. His choices, they say, don’t follow the typical legal strategy of maintaining credibility and good standing before the judiciary.
“Regardless of how genuinely you feel that the court’s opinion was inappropriate and the reputation of your lawyers has been sullied, I don’t know what would prompt you to send this letter,” said Chris Tweeten, who handled civil litigation matters at the Department of Justice from 1993 to 2010, referring to Knudsen’s response to McKinnon’s opinion. “I cannot imagine that is a step that would have been taken by any of the five [attorneys general] that I worked for. It’s unlikely to advance your cause in the litigation, to send a letter like that.”
Four other attorneys suggested that Knudsen and his staff are tempting more than a marred reputation before the court. As justices McKinnon and Rice implied in their rulings, Knudsen may be risking being sanctioned by the court or accused of violating the Montana code of ethics for lawyers.
A judge may reprimand a lawyer by issuing a fine or, in extreme cases, holding them in contempt of court. If a lawyer believes another attorney has violated the professional conduct rules, they are obligated to report the violation to the Office of Disciplinary Counsel. That report and ODC’s internal review are confidential. If the report is substantiated, ODC can present its findings to the Commission on Practice — a panel of lawyers and lay people who evaluate the cases. The most dire outcome of the process would be ODC filing a formal complaint with the state Supreme Court, which could decide to suspend or revoke a lawyer’s license to practice.
Knudsen told MTFP he believes the Supreme Court, in its rulings, has issued a “dog whistle” calling attorneys to file ethics complaints against his office. He said he is not aware of anyone having done so.
REVISING THE RULE BOOK
Since taking office, Knudsen has made other decisions that critics describe as brazenly partisan or dismissive of institutional precedent, including his release of an opinion on the teaching of critical race theory in Montana public schools.
Knudsen’s sprawling opinion, which carries the weight of law unless overturned in court, totals 25 pages and 72 footnotes on current federal and state laws and court cases prohibiting race-based discrimination, including several references to incidents in other states where teachers reportedly discriminated against students in the name of anti-racism education.
The opinion, requested by state Superintendent of Public Education Elsie Arntzen, was met with praise from conservative groups and condemnation from educational associations and newspaper editorials. The Montana Federation of Public Employees, the state’s largest teachers union, dismissed the opinion as a political stunt with no bearing on public school curricula.
Former DOJ employees who helped write opinions issued by past attorneys general described Knudsen’s release as unusual. Previous officeholders have usually declined to issue opinions that respond solely to abstract questions, following the Department of Justice’s own guidelines. Secondly, critics said, the thrust of the opinion was to plant a flag in a political culture war rather than to provide legal clarity. Finally, such opinions often take months to write and typically involve thorough communication with stakeholders to review drafts and offer input.
While acknowledging the controversy around the topic, Knudsen disputed the characterization of critical race theory as an abstract issue, claiming that some school districts in Montana have explored the use of such coursework, even if no such lesson plans have been implemented. Knudsen, whose office released the opinion roughly two weeks after it was requested, confirmed that DOJ attorneys did not solicit input from any Montana education stakeholders.
“This is an issue that we decided, internally, we better do our own homework on and come up with something that was our own, not something that was shopped around,” Knudsen said. “I think that just would open up a whole other can of worms on our legal integrity in here and what kind of a shop we’re running and what kind of research we’re doing for ourselves versus, you know, letting an outside interest group drive us towards.”
Former DOJ employees suspect, based on the quick turnaround, that the opinion may have been partially written or researched by a third party, a theory the department has denied. A spokesman told MTFP the opinion was written entirely by staff attorneys under Knudsen’s supervision. MTFP filed a records request on June 1 for documents created in the drafting process for the opinion. The request has not yet been fulfilled.
Former DOJ attorneys point to the critical race theory opinion as a misuse of the office for political ends. Knudsen’s decision to discontinue a contract for opioid litigation with the national firm Motley Rice LLC because some of its partners have donated to Democrats, announced by the office in May, caused a similar stir. In February, another abrupt decision struck some former employees as a power grab that will complicate legal proceedings for state agencies.
The policy change discontinued the tradition of attorneys general issuing a specific title — special assistant attorney general, or SAAG — to staff attorneys in state agencies. The designation had historically allowed those attorneys to represent the state in court when litigating issues specific to their agencies. While the practice had become standard, it is not required by law.
According to an emailed letter provided to MTFP as part of a public records request, Knudsen’s staff notified state agencies in February that the SAAG designation had created an “unnecessary administrative burden.” Without the designation, “agency attorneys may represent their employing agency, but may not purport to represent the State of Montana.”
In an emailed response to DOJ attorney Derek Oestreicher, Gov. Gianforte’s chief counsel, Anita Milanovich, indicated the policy change was creating confusion within state agencies.
“Could we set up a meeting/call this week to discuss how to sort through/pass off current State litigation in the agencies (I’m getting a lot of questions and I want to be sure the AG’s expectations are being met),” Milanovich wrote to Oestreicher in early March. “Perhaps we could also discuss a preferred method for processing future litigation (if necessary) that I can provide to agency chief legal counsels, as well.”
Discontinuing the special designation, former DOJ attorneys said, could hamstring state agencies in current and future lawsuits and potentially create more work for attorneys within the DOJ who assist state agencies with cases. Some former employees described the move as a way to bundle litigation decisions under Knudsen’s oversight, regardless of the headaches it could create for attorneys.
Knudsen presented the reversal as a way to minimize bureaucracy and streamline legal filings.
“As the attorney general’s office, I think we have a vested interest in being selective about what litigation the Department of Justice’s name is on and what litigation the state of Montana is involved in,” Knudsen said, noting that state agencies often hire outside counsel to assist with lawsuits.
“You can call it consolidation. I call it good government. We’re reining in and being more selective about who gets to use that term to slap a label on themselves in court filings.”
A VERY POLITICAL LAWYER
Of the five previous state attorneys general, two went on to become governor — Marc Racicot in 1993 and Steve Bullock in 2013. One former attorney general, Mike McGrath, is now the chief justice of the state Supreme Court. Another, Joe Mazurek, who died in 2012, was so respected that his name now graces the central Department of Justice building in Helena.
Success as an attorney general can also help define a politician’s brand. Bullock began building his reputation as a crusader for campaign finance reform when he took the helm at DOJ in 2009. Knudsen may have his own calculations for how to succeed in the role. So far, the fight between the judiciary and the Legislature has begun to define Knudsen as an aggressive bulldog for his party’s agenda.
Reshaping Montana’s court system has long been a goal of state Republicans who have described it as stacked against their interests. With a Republican governor in the executive branch for the first time since Martz left office in early 2005, lawmakers advanced and passed a slew of bills this year meant to reform parts of the judiciary, including SB 140. As Republicans have ramped up their investigation of alleged misconduct by the judicial branch, Democrats have framed the feud as part of a broader effort to tarnish the reputation of Montana judges — a characterization Republicans deny.
If delegitimizing the judiciary is in fact the Republican endgame, Knudsen may turn out to be an especially valuable player. His public-facing actions toward the judicial branch are widely understood as adversarial, and upsetting to the status quo.
Republicans might benefit in the short term from challenging the authority of the courts, but undermining the judicial branch, former DOJ officials and members of the courts said, puts Montana’s democracy on thin ice.
“You’ve got the attorney general who’s refusing to do something … now the entire judiciary and their function and their impartiality has been called into question. And it will continue until there are enough people who say stop,” said former Gov. Marc Racicot, who served four years as Montana’s attorney general beginning in 1989.
Regarding the motions for judges to recuse themselves, Racicot added, “If there’s not a judge in this state who could sit on this piece of legislation that’s been challenged in court and render a constitutional decision, what does that mean? What that means is this system has fallen apart. That’s what I’m saying. The republic is at risk of not functioning here. This is not playtime. This is not theoretical.”
In Montana, partisan fights between the executive and legislative branches are as common as wildfire in July. Legal observers say challenging the judiciary is not in the same category of conflict. Members of the courts are held accountable through elections, the Judicial Standards Commission and the legal appeals process. Until now, Montana’s courts have successfully maintained some level of separation from the political fray.
“I’ve been a lawyer and a judge for over 50 years,” said a former Supreme Court justice who spoke on the condition of anonymity. “I don’t know if I can recall in the past an attorney general saying they weren’t going to follow the court’s order. … It goes to the very heart of our democracy, because it threatens the independence of the judiciary. And unless you have an independent judiciary that can issue orders and expect that they’re going to be followed, we don’t have the democracy that our Constitution envisions.”
Racicot said he is primarily concerned with how the stand-off will be read in the court of public opinion. Deploying partisan politics further strains Montana’s social fabric, he said, signaling a failure by elected officials.
“It all becomes about winning and losing,” Racicot said. “And pretty soon you’ve got this terrible mess that really calls into question whether or not we can stay together as an organized people.”
If Knudsen and the Legislature and the judiciary can’t dial down the overheated dispute, Racicot said, Montana as a whole will suffer.
“I just don’t see this ending up in a very good place, because I think it’s, incrementally, going to be continually angry and bitter,” he said. “And what is it that they will accomplish at the end, anyway? Destroy the judiciary, destroy the Legislature, destroy our government … If we think that somehow this is innocuous and that it will all work itself out without people transcending themselves and focusing upon how it is we right this ship, we’re going to deeply regret it.”
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