Published by The Lawfare Institute
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On August 6, New York Attorney General Letitia James sued the National Rifle Association, alleging corruption by longtime executive vice president (and day-to-day head) Wayne LaPierre and his inner circle, and complicity by the NRA board. In addition to seeking the removal of the NRA’s leadership and tens of millions of dollars in restitution and damages from the official and the NRA itself, the lawsuit seeks to dissolve the NRA on the grounds that, because of this corruption, the existence of the organization is no longer in the “public interest.”
The NRA is one of the most controversial and polarizing organizations in U.S. politics and is particularly reviled by the left. I personally can’t stand it, and I don’t agree with either its policies or its legal interpretation of the Second Amendment.
But that said, it’s a mistake to celebrate the lawsuit, even given the cartoonish level of corruption alleged in the complaint. While there’s a strong case for removing the NRA’s leadership and fundamentally reforming the organization itself, James’s attempt to dissolve the NRA in its entirety is a violation of key democratic and rule-of-law norms and should be troubling to people who value these norms no matter one’s place on the political spectrum.
There are two distinct norms that the lawsuit threatens. The first is that the state should preserve, to the extent possible, the free exchange of ideas and an open political arena. That doesn’t, of course, mean that the NRA, or any other political group, is above the law simply because it’s engaged in politics. But it does mean that a lawsuit threatening to destroy any major political group should be held to a high standard. In particular, the government should bend over backwards, even while it enforces the law, to preserve the institution if at all possible. If the allegations in the complaint are true (and they have been supported by years of investigative reporting), James is absolutely right to hold the NRA and its leadership accountable. But the priority should be reform, not dissolution. To seek dissolution, especially out of the gate, is to ignore the millions of Americans for whom the NRA is a vital avenue for political participation.
It is true that James is within her legal rights to seek dissolution. The law under which she is operating is immensely broad, and permits the attorney general to seek to dissolve a nonprofit if it “has exceeded the authority conferred upon it by law, or has violated any provision of law whereby it has forfeited its charter, or carried on, conducted or transacted its business in a persistently fraudulent or illegal manner, or by the abuse of its powers contrary to public policy of the state has become liable to be dissolved.”
But the very breadth of the law is what underscores the need for the norm—which is, after all, an unwritten rule of conduct for government officials—of prosecutorial discretion. As written, the statute permits the attorney general to seek dissolution any time a nonprofit’s leaders engage in serious fraud. But seeking such a radical remedy every time that occurs would clearly go beyond what the legislature intended, and what good public policy countenances. The breadth of the law only makes sense if paired with discretion on the part of those who enforce it.
Nor does precedent support dissolution. Responding to questions after announcing the complaint, James cited two prior instances where her office had sought to dissolve nonprofits that had engaged in fraud and financial mismanagement. The first, the Federation of Multicultural Programs, which provided disabilities services, had been warned repeatedly by state officials for five years before it was shut down. And in any event, it was not a leading national political organization. The second, the Trump Foundation, was, as Jonathan Turley notes, "a small and mostly inactive nonprofit."
James has not established that the NRA is beyond reform. The complaint argues that, because the NRA board is in the pocket of LaPierre, asking it to reform the NRA would be “futile.” This may well be so. But this does not, by itself, justify dissolution. (It’s notable that, on the same day as James filed her suit, the Attorney General of the District of Columbia also sued the NRA and its associated foundation, which is incorporated in the district. The Washington suit seeks many of the same remedies as does the New York suit but without dissolution of the foundation.)
Why not replace the board? The complaint devotes an entire section to the several “dissident” board members who were hounded out of the organization for trying to reform its finances. (Oliver North comes across as an unlikely hero after briefly serving as NRA president, trying to reform the organization’s finances, and being ousted by LaPierre.) Clearly, there’s no shortage of candidates for a reconstituted NRA board.
Nor is it clear why the NRA could not go into receivership or supervision by either the attorney general or the courts while it gets its act together. I’m not an expert in New York nonprofit law, so there may well be some legal nuances that I’m missing. But at the very least, James should have clarified, either in the complaint or in her later public statements, why none of these options, which would preserve the NRA’s ability to function as a political entity, would work. (At her press conference James added that “because they have basically destroyed all of the assets of the corporation, it was critically important that one of the causes of actions and one of the remedies that we are seeking is the dissolution of the NRA,” but the complaint doesn’t talk about the NRA’s financial status. Nor did James explain why other alternatives, like non-profit bankruptcy, were not available.)
Finally, it’s possible that James never intended to dissolve the NRA, and that the dissolution remedy is simply leverage to get the NRA to settle on terms favorable to the attorney general. But merely threatening to violate a norm by itself does damage to it, because it undermines the norm’s power—that is, it signals that violating the norm would be legitimate. This harms the norm’s standing among the public, from where norms get their force. We see this all the time in criminal law, with the pervasive use of overcharging by prosecutors to induce plea bargaining. It’s a widely criticized practice, and it’s no better when done civilly.
The second norm that the NRA lawsuit threatens is that of impartial justice: officials should not use their powers to go after targets simply because they disagree with their politics. Although the timing of the lawsuit—the start of the 2020 election session, in which the NRA was expected to play a major role in supporting Republican candidates—raises questions, investigations are ready when they’re ready, and the timing may just be a coincidence. The bigger concern is James’s own prior statements that show her opposition to the NRA.
In an interview published just a week before she won office in 2018, James called the NRA a “terrorist organization.” This statement is either hyperbole (and does not befit a candidate for the position of chief law enforcement officer of the nation’s fourth-largest state) or shows a worryingly narrow conception of acceptable democratic politics. The NRA is neither the KKK nor Al Qaeda: it doesn’t advocate political violence or plot to overthrow the state. It is a controversial political organization—one of many, like Planned Parenthood or Greenpeace or PETA or Black Lives Matter—through which Americans argue over the most important and controversial political issues of the day. To pretend otherwise is to deny the fact that America is a diverse country with diverse political views.
Whatever James’s motivations, the optics look terrible and can’t but help raise suspicion, especially for supporters of the NRA, that she’s not playing it straight. Whatever the reality, the perception of political prosecution (which the NRA has alleged in its counter-suit) is its own problem, for the simple reason that, for norms to remain healthy, not only must they be upheld by the relevant political actors, but the public must perceive the norm as being upheld as well. That way the public can have confidence in the norm and continue to demand of its political leaders that they uphold it. Precisely because of her public opposition to the NRA, James should have committed to strengthening the NRA as an institution and preserving its ability to represent and fight for a political agenda supported by millions of Americans. This would be perfectly consistent with rooting out corruption in the NRA, providing relief to dissatisfied NRA members and punishing LaPierre and his cronies.
In the end, this lawsuit is about much more than the NRA or even the broader issue of gun rights. The NRA may well survive, either by winning in court, by reforming or relocating to a more friendly state (President Trump suggested, in his own norm-breaking way, that the NRA move to Texas). And if the NRA does collapse, it will only be to the benefit of even-more extreme organizations like the Gun Owners of America (“The only no-compromise gun lobby in Washington.”).
The true importance of this lawsuit is its effect on democratic norms. The last four years have seen the Republican party, from the President down, shred one fundamental governing norm after another. This is bad enough, but an underappreciated danger has been the effect on the Democrats, who have as yet largely resisted the authoritarian temptations that polarization presents. Democracy might be able to survive the corruption of one of its major parties; it certainly can’t survive a spiral of reciprocal norm violations. And while the lawsuit may not quite be “totalitarianism on the subscription plan,” liberals should ask themselves whether, in a world in which organizations like Planned Parenthood are just as reviled on the right as the NRA is on the left, they’re comfortable with partisan state attorneys general seeking to dissolve organizations based on the actions of their leaders. (As Noah Feldman notes, there is a long and shameful history of states using corporate law to harass civil rights groups like the NAACP.)
It’s easy to support good-government norms when they align with one’s political preferences. That’s just cheap talk. The trick is to support them when it’s hard, when you have to make a political sacrifice to do so. James had an opportunity to demonstrate what responsible, norm-respecting government looks like. She could have modeled how a law enforcement official can fight organizational and personal corruption while preserving the legitimate political activity that the organization represents, even—especially—when that official opposes the political activity in question. In short, James could have shown the entire country what the vitally important post-Trump project of norm rebuilding could look like. It’s a shame she failed.