Blind Loyalty: Why Missouri AG Andrew Bailey’s obsession with fighting Trump’s NY conviction is stupider than you think

Missouri Attorney General Andrew Bailey speaks in January 2023 to the Missouri chapter of the Federalist Society in the Missouri House chamber. (Annelise Hanshaw/Missouri Independent)

Donald Trump is a lurking specter, haunting the Missouri Attorney General primary race. The incumbent, Andrew Bailey, is buying into all of this to prove his “MAGA chops” against his rival: an attorney who currently works for the former Republican president.

On May 31, a New York jury found former President Donald Trump guilty of 34 felony counts related to falsifying the business records in a conspiracy to cover up hush money payments to well-known adult film star Stormy Daniels. He was due to be sentenced on July 11, 2024—The U.S. Supreme Court put a pin in that, though. The conservative-leaning high court ruled in another petition pertaining to Trump’s potential criminal culpability in a federal indictment against him.

In a split vote, 6-3, the conservatives of the court expanded presidential immunity to broadly cover most “official acts.” The court’s majority also specified that the use of evidence that falls under the scope of “official acts” cannot be used to charge and prosecute a current or former president for crimes or violations of the law that would qualify as “unofficial acts.” Democrats and left-wingers, including Trump’s then-rival in the election, Joe Biden, were appalled with the ruling. Of note, progressive-leaning Associate Justice Sonia Sotomayor wrote a very powerful dissenting opinion criticizing the conservatives’ very broad expansion of presidential immunity powers.

Missouri Attorney General Andrew Bailey speaks with James Lawson, a longtime friend and his campaign manager (photo submitted)

“The court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding,” Justice Sotomayor warned. But that is only one small component of the clusterfuck haunting Missouri’s Republican primary and the November general election for the presidency. After the high court handed Trump this legal victory, defense attorneys for the former president and the prosecutors agreed to delay sentencing. Juan Merchan, the presiding judge over Trump’s case, also agreed, informing all parties involved that he would review the new ruling on presidential immunity, apply it to the evidence used by prosecutors, and then decide.

The charges brought by Manhattan District Attorney Alvin Bragg—a Democrat who campaigned on putting Trump behind bars—specifically dealt with a documented “catch-and-kill” scheme to hush up Daniels. Never in the history of the United States has a current or former president been convicted of felony crimes. For the left, Trump’s guilty verdict was a welcomed development. A review of the state of play, however, reveals an ever-evolving amalgamation of embarrassments for the country’s legal system. All of this plays out on the backdrop of Trumpist kabuki theater.

Andrew Bailey is hoping to win his first full term as Missouri’s attorney general after being appointed to the position in November 2022 by Gov. Mike Parson (Photo provided by Andrew Bailey’s campaign)

What does this particular criminal case—and really all of the criminal cases currently pending against Trump—have to do with the race for Missouri Attorney General? Unsurprisingly, it has everything to do with the campaigns of incumbent Attorney General Bailey and his challenger, Trump attorney Will Scharf. Assessments provided by some of the foremost experts in the study of attorneys general, presidential immunity, and American jurisprudence have arrived at similar conclusions: Bailey and Scharf are running for attorney general to act as a Trump campaign stooge or a potential Trump White House proxy in the guise of Missouri’s top law official.

Nothing really sets the two leading candidates for the Republican nomination for the attorney general far apart. Bailey and Scharf are red-blood conservative Republicans emboldened by a GOP recast in Donald Trump’s typical xenophobic paranoia. Bailey and Scharf align with the former president and the Republican National Committee’s platforms. This journalist, though, firmly believes Attorney General Bailey is proving more reliant on these performative politics.

In July, Bailey officially announced that he was suing the state of New York for alleged election interference and for violating Missourians’ First Amendment rights. Bailey argues in his lawsuit that prosecutors and criminal justice officials in New York—including Attorney General Letitia James—criminally charged Trump in a bid to interfere in the 2024 election. This is quite a stretch.

The lawsuit was filed before the Supreme Court. Bailey’s complaint challenges an official act in another state—Trump’s criminal prosecution and the guilty verdict. Disputes between states are determined by the Supreme Court due to the fact that individual states lack jurisdiction over one another. For example, state supreme courts cannot hear cases involving another state’s judiciary. Bailey’s challenge is to establish standing for this case to be heard, which is highly unlikely. Keep in mind, he has been handed recent defeats for failing to establish standing in other cases.

The Pitch contacted the offices of Manhattan District Attorney Alvin Bragg, New York Attorney General Letitia James, and Missouri Attorney General Bailey for comment clarifying the status of the case. In our many queries to Bailey’s office, we asked for information about the costs to taxpayers for the lawsuit and whether there were any outside influences from groups like the Republican Attorneys General Association or special interest organizations linked to Trump or his allies. No responses were provided, which prompted The Pitch to submit an open records request to his office’s custodian of records, requesting this information. Unfortunately, due to a backlog of over 150 requests, our request will not be returned until September, after the primary.

Missouri Attorney General Andrew Bailey during a TV appearance with Mike Huckabee to discuss his investigation into Media Matters (campaign photo)

“Instead of letting presidential candidates campaign on their own merits, radical progressives in New York are trying to rig the 2024 election by waging a direct attack on…democratic process,” claimed Bailey in a July 2024 press statement. “I am filing suit to ensure every Missourian can exercise their right to hear from and vote for their preferred presidential candidate,” Bailey said, presenting the conviction of the former president as a conspiracy instigated by billionaire philanthropist and founder of the Open Society Foundations George Soros. Note, that Bailey saying that the verdict against Trump derives from so-called “Soros-backed prosecutors” is linked to a decades-long series of debunked anti-Semitic conspiracy theories.

Upon review of the complaint, Bailey’s near-100-page filing before the high court is laden with baseless election interference theories and a rudimentary interpretation of existing case law. He additionally filed for a motion of preliminary injunction calling Trump’s conviction “illicit.”

The lawsuit brings three counts against New York. Count one accuses New York of interference with the outcome of the 2024 presidential election in other U.S. states, especially Missouri. The second count alleges a violation of the Purcell principle (a legal doctrine that prohibits unlawful voter disenfranchisement derived from the 2006 ruling in the case Purcell v. Gonzalez). The third and final count in the suit alleges a violation of the First Amendment rights of Missouri voters. Bailey’s case also seeks to remove the official gag order Judge Merchan has levied on Trump.

“This lawfare is poisonous to American democracy,” reads Attorney General Bailey’s lawsuit. “The American people ought to be able to participate in a presidential election free from New York’s interference. Any [‘gag order’] and sentence should be stayed until after the election.”

“I can certainly understand the frustration felt by Attorney General Bailey and the residents of Missouri that he represents,” said Corey Silverstein, a First Amendment attorney based outside of Detroit, Mich., where he typically specializes in criminal defense and adult industry clients.

“The ‘gag order’ imposed on President Trump in the New York criminal case against him is certainly troubling and free speech advocates, including myself, from across the country have voiced their concerns,” Silverstein says. “While I can certainly understand Mr. Bailey’s grievances, I see substantial issues with his lawsuit that I do not think he’ll be able to overcome.”

As briefly mentioned above, Silverstein pointed to the lack of legal standing in Bailey’s lawsuit. He cited the Supreme Court’s ruling in the 2020 case of Texas v. Pennsylvania that Texas lacks standing under Article III of the U.S. Constitution to sue other states over how they conduct their elections. Texas lacked standing, Silverstein said, and for these reasons, Bailey will likely fail.

“While the facts in the Texas case were different, I believe that the outcome will be the same,” Silverstein says. “Nevertheless, I must question the timing of Bailey’s lawsuit because President Trump has been convicted and the case is only waiting on sentencing at this juncture.”

“As such, the filing of Missouri’s case feels more politically motivated than substantive and I believe that the Supreme Court will see it the same way,” he says. This is a notable observation. Other experts we spoke to dismissed the flimsiness of Donald Trump’s guilty conviction. Rather, they echoed Silverstein’s observation that Bailey will be dealt a loss due to his lack of standing.

Mark C. Miller, a retired law professor, explained to The Pitch that another landmark case that could harm Bailey’s attempt to fight Trump’s verdict in New York is United States v. Texas. In this case, the Supreme Court held that state governments cannot sue federal agencies relating to issues of federal prosecutorial discretion, nor can states violate federal immigration guidelines. Miller mentions United States v. Texas and Texas v. Pennsylvania as a basis to kill Bailey’s suit.

“These two important rulings would imply that Missouri does not have standing to challenge criminal or civil court decisions in New York against former President Trump,” Miller explains. Miller previously spoke to The Pitch for our exposé on banking discrimination against LGBTQ+ people. He referred to how elected attorneys general, regardless of whether they are Republicans or Democrats, have extremely broad power to determine what is in the best interest of their state.

Colin Provost, associate professor of public policy at University College London, in the United Kingdom, expanded on this concept. In an email, Provost also characterized Bailey’s complaint as political and is what Mark Miller calls a “high priest” of American politics acting unilaterally.

“Politics at the federal level has been highly polarized for some time and increasingly, the states mirror that polarization,” Provost says. “AGs have pushed the boundaries of what they can do, bringing coordinated lawsuits against federal policy initiatives, using consumer protection laws in increasingly unconventional manners, and in some cases, making policy promises that are largely symbolic, like Andrew Bailey’s promise to overturn the Trump hush money verdict.”

Provost also observed that Bailey is simply using his position for political points in his race against Scharf. As mentioned above, Bailey is working on the dime of taxpayers to sue the state of New York for an official action undertaken by their unified criminal justice and court system.

“It’s possible that the verdict is overturned because of the immunity case, but this would only be because Judge Merchan decided that, not because of the actions of Andrew Bailey,” Provost says. “He is running in a tight primary and… wants to gain every advantage he can, so promising to go after the Manhattan DA, while having no legal merit, may sound great as a campaign speech.”

Missouri Attorney General Andrew Bailey attends a February 2024 press conference with former University of Kentucky swimmer Riley Gaines as he outlined efforts to limit opportunities for transgender Missourians, including in girls sports and in health care (campaign photo).

Michael J. Gerhardt—the Burton Craige Distinguished Professor of Jurisprudence of the School of Law at the University of North Carolina at Chapel Hill—further reaffirmed the standing claim.

“The Missouri Attorneys General is clearly acting outside the scope of his authority,” Gerhardt says in a more aggressive tone compared to Miller, Provost, and Silverstein. “He has no business, no standing whatsoever, to intervene in a case brought in a different jurisdiction, much less one in which neither he nor his office is a party. His actions are purely partisan, designed solely to appease his constituents and embarrass Democrats. The politicization of state AGs is nothing new, but what is new and quite disturbing is the AGs do not care about the rule of law at all.”

Prof. Gerhardt says, “They only are interested in scoring partisan points. Their lawlessness, or disdain for the law makes them dangerous and unworthy to wield the powers of their offices.”

Being that standing is the main issue among these legal experts, it is also worth, again, mentioning that Bailey was most recently handed a loss in the case Murthy v. Missouri. The Supreme Court in Murthy held that Missouri lacked standing, also under Article III of the Constitution, and the case was dismissed. While the case was initially filed by former Attorney General Eric Schmitt, Bailey’s inability to file lawsuits built on solid legal standing has scarred his tumultuous tenure.

All four of these attorneys are correct. While Bailey is relying on the ultraconservatism he is trying to pitch to primary voters, the reality of the situation needs to be addressed. As the chief legal officer for this state, Bailey is doing a disservice to the millions who rely on his office to defend them in actual consumer rights issues and alleged abuses of power by large corporations.