Commentary
I had interviewed Tennessee’s Attorney General Jonathan Skrmetti before and learned several things—among them that states’ attorneys general are known as “Generals,” as in General Skrmetti, and that Tennessee’s attorney general and reporter, as the role is officially called here, is appointed by the state’s Supreme Court for a—unique in our nation—eight-year term.
At first glance, that would seem unconscionably long, almost undemocratic, but in the case of General Skrmetti, it’s a blessing in disguise.
In a state and a country where skepticism of public officials is pervasive, General Skrmetti is one of the few who can be relied upon to protect our constitutional republic with the fervor the Founders intended.
Unlike what we have seen in Washington, he follows the law.
Below is an interview (slightly edited for length) I had with him in his office for the one-year anniversary of his service, which is actually a few days from now on Sept. 1.
In the first year, General Skrmetti dealt with a staggering number of crucial issues, among them leading a multistate response to the Department of Education’s attempt to redefine “sex”; helping to win a $391 million multistate settlement with Google over its location tracking practices; condemning solar energy lending scams; backing consumer protection for Ticketmaster clients; urging President Joe Biden to classify fentanyl as a weapon of mass destruction; calling on Congress to end the the emergency Biden administration COVID powers and joining a multistate coalition seeking the repeal of unlawful Department of Health and Human Services federal vaccine mandates, plus numerous other actions in the legal defense of our embattled republic in the areas of abortion, religious freedom, immigration, transgenderism, and others.
Part 1: Coalition Building, Gender Dysphoria Billing
Roger Simon: Greetings, General Skrmetti. Thanks for having me. I remember when I was here the first time, you mentioned you were getting together a task force of “legal eagles” to help with your work and investigations. How is that going?General Skrmetti: The governor and the General Assembly funded it. We got the budget starting on July 1st. We’ve hired a director who starts in just a couple of weeks, and we’ve got a few hires in the pipeline, and we’ve got a few more we are working on. So, we ought to have that up and running very soon. We’ve been fighting those fights but with a bit more of a patchwork approach.
Mr. Simon: Now, you’ll have an army or similar. I was astounded to read how many lawyers there are in the United States, far more than any other country on a percentage basis.
General Skrmetti: It’s incredible. In our LW litigation [litigation in law] concerning pediatric transgender prohibition, I think I counted over 20 attorneys on the other side between the different parties. We had six.
Mr. Simon: How did you get into that litigation over the transgender issue?
General Skrmetti: It’s really broad. There’s not one transgender issue out there. There are a bunch of discrete issues dealing with laws that have been passed and with efforts to change or overturn existing law. And so, you have litigation about birth certificates; you have litigation about sports for kids in primary school and for college students. You have litigation about locker rooms in some places. You have litigation about bathrooms. You have litigation over laws like the one that said you can’t perform irreversible gender transition services on minors because they’re too young to consent to potential lifelong sterility or other long-term complications.
Mr. Simon: And there’s your investigation of transgender treatment billing you got into with Vanderbilt [University Medical Center] that raised the ire of one of Nashville’s most devout liberal journalists, Phil Williams, who implied you only did such investigations in those cases. Would you explain to Epoch Times readers how that happened?
General Skrmetti: I hate to talk about investigations until they’re done. Our fraud investigations, typically, nobody knows about until we file the complaint, or we settle the case. And so, it’s unusual to do this, but there was information that came out in the court due to one litigation that created consternation. The information came out that the AG’s office is going after transgender people, that we have a list of transgender people, and we’re trying to get their medical records to mess with them—and that was absolutely not true. I don’t feel good about people thinking I’m coming after them. These are people who have a lot of problems in their lives. It’s a difficult situation for them to be in, regardless.
Mr. Simon: To be clear to readers, this was a fraud investigation. Doctors were billing for something other than a transgender surgery in order to defraud insurance companies.
General Skrmetti: Yes. The predication for the litigation was a lawsuit about whether we can have sex-segregated high school sports teams. In the course of preparing for a deposition, one of the lawyers in this office found a YouTube from a doctor at Vanderbilt University Medical Center who was talking about changing codes. Because if you put gender dysphoria as a code, you can’t get reimbursed under a lot of different insurance plans. One of the things this office does and has done for a long time is enforce our false claims and our Medicaid False Claims Act, which says if you’re getting money from the state, you can’t lie about the predication for it. We do this very frequently in the medical billing context, so changing codes and doing so to avoid limitations in payment is just a huge red flag that demands investigation from us.
Part 2: Cooperation Among Red State AGs
Mr. Simon: You have alluded to and we have seen considerable collaboration between red state attorneys general [AG] on legislative issues. How do you folks communicate? How does that work?General Skrmetti: We get together from time to time. There are meetings every couple of months, and we get a chance to sit down and compare notes a little bit, talk about priorities, and about who wants to take the lead in what, and just update each other. There’s a lot of conversation at the staff level, so my chief of staff, Brandon Smith, is often in contact with the leaders of the other offices who are implementing the AG decisions, great folks who are drafting the litigation. There are a lot of really hungry young attorneys who want a chance to make the world a better place. They’ll come into the AG’s office because they’re big opportunities and a lot of autonomy there. And so, a lot of what we do is just to give these guys the opportunity to run, point them in a direction and have them figure out how to solve problems.
A lot of these guys already know each other. There’s a relatively tight conservative community out there. Kids get to know each other in law school, clerk together. They might work on a law journal together.
Mr. Simon: To the extent you can disclose it, what are some of the issues on the calendar for this group that you are looking at in the future?
General Skrmetti: There are a lot of irons in the fire. I think I can talk big picture about some things where we’ve done some work and you’re to see a lot more work in the future. One of the biggest is pushing back against the rise of the administrative state. We live in a constitutional republic that’s supposed to be predicated on separation of powers, and you see the Federal Executive Branch amassing way too much power, and it’s distorted the law in all sorts of different ways.
We’ve already started pushing back against proposed rules, but I think you’ll see more of this—the whole war on appliances thing. It’s not the case of the century, right? It’s kind of goofy, you know, but they’re really trying to constrain the choices that consumers have with respect to basic day-to-day things. I heard the next target is toasters. And so, we’re going to file comments pushing back against these proposed regulations. We think there are really serious legal problems with the basis for these regulations. So, if the regulations get promulgated, we will litigate. The position on the other side is we have to do this to save the planet, right? But you know there’s some shaky foundation for that.
Mr. Simon: It would seem.
General Skrmetti: I mean that’s the downside of living in a technocracy. You have people who think they’re better at making decisions for you than you are. And that’s not what America is about. Obviously, there is some role for government, but there are limitations. There are processes we’re supposed to go through. You start taking shortcuts to achieve what you want that makes it easier and easier for the government to control more and more of people’s lives.
Mr. Simon: Like all electric cars by around 2030?
General Skrmetti: There was a proposal right along those lines. We filed a comment highlighting all kinds of problems. The auto industry is saying it’s a terrible idea. We don’t have an infrastructure capable of doing this in a way that’s going to work. I think it’s good for consumers to have a choice, and I think there is a lot of future for electric vehicles, but the heavy-handed government regulations that are saying you must buy these vehicles inevitably guarantees that we’re going to have a market that does not give people what they want.
The legal foundation for the federal government saying what people have to do, I will say again, is extraordinarily shaky. These regulations on that simply do not allow them to make these sweeping claims and to impose this rigid structure on people.
Part 3: The Justice Department, Human Trafficking
Mr. Simon: If you would, take off your judicial probity hat for a moment and tell us what you are thinking, as a state attorney general, about what’s going on in Washington with our Justice Department?General Skrmetti: I know there’s a lot of good people in the Department of Justice, but there’s a lot of political stuff going on there that I worry will undermine our criminal justice system. Part of it is substance, part of it is optics. But if people don’t believe that the United States government is pursuing justice, things like jury nullification will increase. I used to prosecute human trafficking cases [at the DOJ]. I prosecuted corruption cases. I don’t want to have some jurors say, well, he’s from the Department of Justice, therefore we shouldn’t believe him. These are cases where there are bad people who need to be held accountable. So, I’m really worried about the overall integrity of the system.
Part 4: The Revival of Cities
Mr. Simon: We’re all concerned by the massive decay of American cities—Los Angeles, San Francisco, New York, Philadelphia and so forth. Nashville has problems and Memphis, as you mentioned, has serious problems. Do you see a role for state attorneys general in their revival?General Skrmetti: I think every state official has to be focused on making our cities work. And, you know, here in Tennessee, you’re seeing this incredible opposition between the very conservative state government and a very progressive city government that are butting heads. There are reasons that this has happed, but I hope that once we conclude our litigation—and, thus far, it has gone well for the state—I hope that we can reorient towards making sure that these really powerful economic engines continue to function because they’re good for the cities and they’re good for the whole state. Huge parts of the state GDP are bound up to these cities. We want them to work. We cannot have some weird sharp dichotomy, where you have people looking for opportunities that—trying to think of a diplomatic way to put this—you know, the policymakers have every right to make policy and it’s my job to serve as their legal counsel but, in the long run, I hope that the temperature comes down.
Nashville has enjoyed an incredible boom of success. Memphis is a great city, but it’s a wounded city, and we need it to come roaring back. To the extent that I can help, that the state can help, we need to do that. Republicans have different ideas from the Democrats and that’s just the way it’s always going to be. We need to disagree. It’s important that we disagree, but we also have to work to make sure that we aren’t impeding our ability to work together and where we can make things better for everybody.
Part 5: Big Tech, the Corruption of Power
General Skrmetti: One other big thing that is continuing to be a priority for this office is looking at Big Tech. And we’ve been looking at that in a variety of contexts. We are in some antitrust litigation. We had a case against Facebook. We’ve got several trials coming up this year against Google, looking at antitrust violations there involving search and their purchasing system. Google is a trillion-dollar company; they have over 10,000 lawyers. Their resources are just about infinite, and they hired very good people. These are challenging cases but the one I’ve been particularly concerned about—and again I don’t like to talk about our investigations—but we had a pretty prominent blowup with TikTok about their not providing information they are supposed to provide. We’re looking at social media, specifically the impact on the mental health of teenagers. I think if you talk to anybody in the country, they would say the differences between the kids a generation ago and kids right are huge. The damage being done, being knowingly done, by these huge corporations needs to be addressed.Mr. Simon: TikTok is a Chinese company. Do you think there’s an element of the deliberate destruction of American youth in their behavior?
General Skrmetti: How can you look at the difference between the Chinese parallel product and TikTok in the United States and not think there is a deliberate decision being made somewhere. They don’t let the same stuff on. In the Chinese parallel product, there are time limits on how long kids can access it, when they can access it. They can’t get on late at night. They can’t get on during school hours. Content is heavily monitored. Basically, you get educational stuff or patriotic propaganda, and here you get on TikTok, and you can see that it is designed to be addictive. These people have very sophisticatedly understood the way the human brain works, and they know how to make us just get addicted to these products. It’s not just TikTok. It’s a number of very sophisticated companies. ... a small number. There’s a huge consolidation of power through a very small number of companies that have huge data and have huge money and their influencing society in ways that, you know, we can’t fully understand yet, but we know that they’re a big problem.
Mr. Simon: The federal government has made some intermittent attempts to do something about this. Sen. Marsha Blackburn has spoken against Section 230, which insulates Big Tech from lawsuits over what they publish. Can the states get involved?
General Skrmetti: Tennessee led on this with the state’s amicus brief in the Gonzales v. Google case, which was the Section 230 case that went up this past term. The case ended up being a bit of a fizzle. It didn’t really get into the issue, but I certainly intend for us to be heavily involved in all that litigation going forward. I think if you read the law and apply it as written—and I think Justice [Clarence] Thomas has written something about this in a separate opinion—it’s not nearly as broad as it’s been construed to be. Actually 230 has been great. It’s vitally important for the development of the internet, but it’s not a Get Out of Jail Free card for every bad thing an internet company does. And what we’re talking about with these cases is not content being put up, it’s the algorithms that are driving the content.
That’s where the problems are. That’s where the harm comes from. And, you know, it remains to be seen whether Section 230 reaches that far, but I think there are strong arguments that it does not. I mean anywhere there’s a concentration of power, there’s an opportunity for abuse. And the No. 1 role, I think this office plays structurally is to ensure that power doesn’t get too concentrated. We want to be the thumb on the scale to make sure that structure of our government and the structure of society continues to promote freedom—and to respect every individuals’ ability to make their own choices for their own life.
Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.
