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In 1st Year As Attorney General, Aaron Frey Has Had To Decide When Maine Opposes Trump

Linda Coan O'Kresik
Bangor Daily News
Aaron Frey stands in front of the Penobscot Judicial Center in Bangor, where he's represented clients in a number of criminal cases, in late 2018 after he was elected Maine's attorney general. He's now just shy of a year into the job.

It’s been just shy of a year since Aaron Frey went from being a state legislator and criminal defense lawyer in Bangor to managing one of the largest law firms in the state with more than 115 lawyers and 80 support staff.

In his first year on the job as Maine’s attorney general, Frey, 40, of Bangor has encountered a few surprises and found that he spends time each day deciding when Maine will join other states with Democratic attorneys general in challenging the policies of President Donald Trump. In a recent interview, he discussed how he makes those decisions, his expectations for a state lawsuit against the opioid manufacturer Purdue Pharma and his office’s investigations into police officers’ use of deadly force.

As for a surprise that’s come with being the state’s top law enforcement officer, Frey said, “We get a lot of letters from Mainers who think the AG’s office has a lot more authority to solve their problems than we actually have. There isn’t a template on how to deal with them, but I want to be helpful. The challenge is how to get them properly directed.”

Overall, Frey said, the adjustment from a solo practitioner law office to the attorney general’s office hasn’t been as big a challenge as he thought it would be.

“So much work over the years by a number of different AGs went into hiring excellent attorneys and staff that it has not been as hard as I’d anticipated getting into the rhythm of the AG’s office,” he said.

Deputy Attorney General Lisa Marchese, who heads the criminal division and has worked for seven different attorneys general, including Frey and now-Gov. Janet Mills, praised Frey’s approach to the job, including making sure the office was fully staffed.

“At the time AG Frey was elected, the office was short-staffed because necessary approval to fill positions from the prior administration had been withheld,” Marchese said. “Aaron immediately collaborated with division chiefs to get positions filled and bring the office up to full complement. He is a quick study and very approachable. He has been supportive, open and available to people in the office, and these characteristics are certainly appreciated.”

While no two days are the same, Frey does spend a portion of each day considering whether Maine will take a stand on national issues. Whether it’s a lawsuit, a “friend of the court” brief or a letter to the head of a federal agency, Frey must decide what he will sign onto and what he won’t.

While Frey admits that opposing Trump administration policies plays a role in those decisions, his bottom line in making a decision is always: How does it benefit Maine?

Credit Robert F. Bukaty / Associated Press
Associated Press
Rep. Aaron Frey, D-Bangor acknowledges applause after he was elected to be Maine's next attorney general, Wednesday, Dec., 5, 2018, at the State House in Augusta, Maine.

As an example, he joined other states in a lawsuit opposing Trump’s plan to divert money from the U.S. Department of Defense’s budget to build a wall on the Mexican border.

“I took a lot of criticism for that one,” he said. “But diverting funds from the military put at risk significant funds that were to be directed to Maine — about $160 million for the Portsmouth Naval Shipyard. The decisions I’m making, I believe I can justify as being in Maine’s best interest.”

He also has signed onto litigation opposing Trump’s proposed restrictions on asylum seekers, the Environmental Protection Agency’s rollback of limits on power plant emissions, and a regulation designed to pre-empt California’s more stringent greenhouse gas and fuel economy, which Maine has also adopted.

On the other hand, Frey refused to join a challenge to proposed changes to Endangered Species Act regulations. He said he faced criticism from progressives for not joining that suit.

“We are presently engaged in pretty significant negotiations over controversial proposed requirements concerning what gear lobstermen must use” due to concerns about the diminishing number of North Atlantic right whales, he said. “If we sign onto that lawsuit, it would create a disconnect on a position the state may have to take in the lobstering discussion. In making these kinds of decisions, I have tried to recognize that I will be defending and/or advocating for the state and its departments.”

The National Oceanic and Atmospheric Administration is in the midst of developing rules that could force lobstermen to reduce the amount of vertical buoy lines they put in the water, and to attach more traps to each buoy. The Maine Department of Marine Resources has proposed an exemption for lobster boats working in a zone that extends roughly 3 miles from shore.

One piece of litigation Frey is paying close attention to is the state’s pending lawsuit against oxycodone manufacturer Purdue Pharma, which accuses the company of deceptive marketing practices that contributed to the state’s opioid addiction crisis.

Of the 2,206 opioid overdose deaths in Maine between 2007 and 2018, which include deaths involving heroin and nonprescription fentanyl, 1,321 were caused by prescription opioids, Frey said in announcing the state’s lawsuit in June. Of those deaths, 482 were caused by oxycodone.

Frey said that he expects there will be a “global settlement” in the case. In September, 22 states signed off on a reported $10 million to $12 million settlement. Maine was not among them.

“I am trying to ensure that any distribution is based on the intensity of the epidemic, not just population,” Frey said. “Any distribution must recognize the harm this epidemic has caused in Maine. The settlement should not just be restitution [reimbursing the state for its spending on treatment] but also look at ways to abate the crisis.”

The attorney general believes that policymakers from the Legislature, the executive branch, and municipalities and counties (several of which are part of a separate opioid lawsuit) will be involved in making sure that whatever resources the state receives are distributed effectively.

“I expect it will come into the state in a way similar to the tobacco settlement [in the late 1990s], but unlike that money, it will not get spent on other things like roads and broadband expansion.”

One thing Frey said he hopes to change is how long it takes for his office to investigate and produce reports on police officers’ use of deadly force. In the past year, Frey has signed off on just three investigations, all from incidents in 2017. There are more than a dozen pending investigations — one from 2017, five from 2018 and eight from this year.

“Getting these reports out is going more slowly than I would like,” Frey said. “I want to make sure I know the ins and outs of each case and make sure I understand the file before I sign off on it. I’m trying to build in a schedule so that this takes less time. But it is taking me some time to get into that pattern.”

The Maine attorney general’s office investigates every instance of Maine police officers’ use of deadly force to determine whether officers were legally justified in firing their service weapons. The most recent report was filed Nov. 26 concerning a July 5, 2017, incident in Madison when officers shot and killed a man who had slain his wife, son and a neighbor, and wounded his brother-in-law.

In its more than 100 reviews of police use of deadly force since 1990, the attorney general’s office has never found that an officer was not justified in his or her actions.

This month Frey met for the first time with members of a new committee created by the Legislature — the Deadly Force Review Panel — that will review the same incidents with an eye toward determining if department policies were followed, what could have been done to avoid the use of deadly force and if other techniques or strategies could have been used to de-escalate the situation.

The group will not weigh in on whether the attorney general’s office made the correct determination, Frey said.

Frey also recently closed a controversial review of Dr. Mark Flomenbaum, the state’s chief medical examiner, who works for his office.

The review started in March after Rep. Jeff Evangelos, I-Friendship, filed a complaint after a judge in February declared a mistrial in the case of a Windham man accused of killing his wife because Flomenbaum changed his description of the trajectory of the fatal shotgun pellets. The complaint also said it appeared Flomenbaum was running his outside consulting business on state time.

Evangelos later added an objection concerning a medical examiner’s office finding that alcoholism contributed to the death of an Appalachian Trail hiker, which Flomenbaum later reversed.

Though Frey chided Flomenbaum for a 2017 job posting that used macabre humor, his review was almost wholly positive for the medical examiner. Frey said in a letter that nothing shook his confidence in Flomenbaum’s work, saying the medical examiner’s testimony had “been integral to many murder convictions” and that there was no evidence he was running his business on state time other than an incidental call he answered from a reporter that was allowed under state policy.

Frey graduated from Nokomis Regional High School in Newport in 1997, St. Anselm College in Manchester four years later and the Roger Williams University School of Law in Bristol, Rhode Island, in 2008.

He moved to Bangor to set up his law practice after graduation and was elected to the Maine House in 2012 representing the Bangor district made up of the tree streets and a small section of Orono. He was re-elected in 2014, 2016 and again in 2018, though he was never sworn in for his fourth term because he had become his party’s nominee for attorney general.

Frey said he plans to seek re-election as attorney general if Democrats retain control of the Legislature in the November election and does not think Maine — which is the only state where the Legislature chooses the attorney general — should change how it chooses its constitutional officers.

Frey said that election by the Legislature works for Maine even when the governor and attorney general are from different parties and clash, as did former Gov. Paul LePage and Mills while she served as attorney general. So far, Frey and Mills have kept any conflicts they might have private.

Mills’ office did not respond to a request for comment on Frey’s performance. Republican leaders in the House and Senate didn’t either.

The House chair of the Legislature’s Judiciary Committee, Rep. Donna Bailey, D-Saco, described Frey as “very responsive and open.”

“I have been impressed by his willingness to share information and knowledge, as well as to consider criticisms and suggested improvements to his own department,” she said. “I think he is well regarded and respected, even by those that may disagree with some of his positions politically.”

This story appears through a media partnership with the Bangor Daily News.