Narrator: Presentation of Idaho Reports on Idaho Public Television is made possible through the generous support of the Laura Moore Cunningham Foundation, committed to fulfilling the Moore and Bettis family legacy of building the great state of Idaho.

By the Friends of Idaho Public Television and by the Corporation for Public Broadcasting.

Melissa Davlin: It's the attorney general's job to defend the laws of the state.

And how well the AG does partly depends on the strength and constitutionality of those laws, as well as their approach in the courtroom.

This week, Attorney General Raúl Labrador joins me to share his take.

I'm Melissa Devlin.

Idaho Reports starts now.

Melissa Davlin: Hello and welcome to Idaho Reports.

This week, Idaho made national news as both Boise and Bonners Ferry passed resolutions to continue flying flags, a pride and organ donor flag in Boise and a Canadian flag and Bonners Ferry.

Despite recently passed legislation that prohibits Idaho government entities from flying flags that aren't state, city, tribal, military, or the U.S. flag.

The Boise Resolution in particular, drew protests and supporters to Tuesday's meeting.

I suspect this will pass.

And there'll be people in this room that will cheer and people who will be furious.

And I guess I would ask to what end?

I suspect the legislature will come in, and it will slap a huge fine on the city of Boise.

And, boy, since we'll have to pay it and that will limit what we can spend on things that we have control over, like police and fire and libraries and parks and all the things that make Boise what it is today.

And it'll likely end up in court.

And, like several city hall decisions, it will cost the taxpayers and there won't be an opportunity for compromise.

And that makes me sad.

a lot of folks are here for and against the pride flag, but, the legislation attempts to be neutral on messaging, and we think about all the other different messages that we exclude.

And important things that we don't want our government to be neutral on when we go after one specific flag.

Davlin: Joining me to discuss this and so many other issues is Attorney General Raúl Labrador.

Attorney general, thank you so much for joining us.

Do you have any issues with the resolutions that Bonners Ferry and Boise passed?

Raúl Labrador: Well, they're in violation of the law.

The, both resolutions don't really look at the language of the law.

They don't really understand that.

The law, for example, in the Boise Resolution, the statute clearly says that a city may fly the official flag of the city, not the official flags of the city.

So there's only one official flag, for the city of Idaho.

And in fact, this morning I was listening to something totally unrelated to politics, and it was talking about banners.

The reason we have flags and the reason we have banners, it was kind of ironic that I, you know, it had it was more of a religious context that I was listening to, and it had nothing to do with any of these controversies.

And the purpose for flags and banners is to unify the community.

That's why we fly the American flag, because it represents all Americans.

That's why we fly the Idaho flag, because it represents all Idahoans.

That's why we flag fly the city flag, because it represents the city.

And and these flags are somewhat divisive.

And actually, I said, as a city council member said that, that it's content neutral.

You know it.

If you remember, the city of Parma was was, flying the Davlin: The blue line.

Labrador: The blue line exactly.

And and we called them as well and we said, hey that this state statute says that you can't fly that.

And they informed us as soon as we found out what the state statute said.

We we took down the flag.

So, Davlin: You published a letter that you sent to the Boise mayor about the city violating this new law.

Did you send a similar letter to Bonners Ferry over their Canadian flag?

Labrador: So we called them, and, we we told them that they should take down the flag, and and then they asked, well, well, what's going to happen if we don't take down the flag?

And we said, well, we'll send you a similar letter.

They took down my understanding is that they took down the flag, but then they did, you know, this this resolution and that one's also in violation because the statute clearly says that it's for special occasions.

And what they did is they've passed a resolution that says that every day is a special occasion for them, and that clearly is outside of the intent of the legislation.

Davlin: We looked it up.

Bonners ferry started flying their flag exactly 38 years to the day on May 9th, 1987.

Yes, this isn't a new issue for them.

This is part of their identity as a community.

Idaho is a small government local control state.

How does this law and these efforts fit in with that philosophy?

Labrador: Yeah, so so number one, I think for the audience to understand Bonners Ferry, you the Canadian border.

So I understand why they they fly the flag.

They're welcoming Canadian people to the state.

The, the I think there's a lot of commerce going back and forth and they want to be welcoming.

It's a really interesting issue that happens in the legislature.

Happens in Idaho.

Idaho is a large state with a small population, and we do believe in local control.

We believe in small government.

But the reality is that municipalities like cities and counties are subject to state laws.

And there's a huge confusion, especially among county commissioners and mayors and others.

They think that they're independent, that they can make these decisions independent of the state.

The state, gets to decide what the cities and the counties can do.

It's yes, we believe in local control.

And most decisions we leave to the locals.

I want to be clear.

I'm not the one who drafted this law.

I'm not the one who passed this law.

My job is just to be the the chief legal officer for the state of Idaho.

And there were a lot of people who were asking our office what are you going to do about it?

So that's why we acted in the way that we did.

And we just sent a letter.

We tried to be persuasive, but it has a minimal impact on what they were doing.

And like we did with with the city of Boise, all we did is we sent them a letter explaining what the statute said, what their obligations were.

And I think you read the letter.

The letter mostly appeal to her nature as a as a duly elected mayor that Davlin: The Boise mayor specifically.

Labrador: The mayor specifically.

We said, look, you're the, the mayor of Boise.

You have been elected by the people of your community, and you're expecting the people in your community to follow the law.

You're setting a bad example by not following the law, because we couldn't, you know, there's a lot of statutes that don't have enforcement mechanisms.

There's a lot of ordinances that don't have enforcement mechanisms.

So now, can the citizens of Idaho say, you know what, I no longer have to follow the laws because they don't have a specific enforcement mechanism.

I think she's setting a really bad example.

I think, Luci Willits said it best where this is actually going to cost them now, which is something which I explained to her in her letter.

The legislature is going to take action when they come back next session, and it's going to cost the community and the city money for violating the law, and she doesn't pay it out of her pocket.

It's going to cost the citizens of Boise.

And I think that's shameful.

Davlin: Are these fights the right use of time and state resources?

Labrador: Well, that's part of the problem that we had is that our office was being inundated with these calls.

We, you know, as you know, they were calling to they wanted me to arrest her.

They wanted me to take down the flag.

Our office was constantly inundated, and that's why I wrote the letter.

It wasn't just a message to her.

I was also trying to send a message to the community.

There was a lot of confusion about what the the law said.

There was a lot of confusion about whether law enforcement could get involved.

They wanted the county sheriff to go arrest her, they wanted me to go arrest her.

And it was creating so much confusion that I wanted the letter.

That's why I sent it out publicly.

I wanted it not just for her, but also for the public to understand that this was not a criminal statute.

This is not a statute that you can use to arrest somebody.

This was mostly a civil statute.

It did not have civil penalties, which I think is unfortunate.

But she shouldn't obey or disobey a law because it has or doesn't have civil penalties.

You should obey or disobey the law.

She should obey all laws as she has made.

And oh, she took an oath, as an elected, mayor.

Davlin: As you mentioned, you didn't draft this law.

Labrador: I did not.

Davlin: You didn't pass this law.

Labrador: No.

Davlin: Did lawmakers, though, consult with your office about whether this proposal was workable without an enforcement mechanism?

Labrador: They did not.

Yeah.

Davlin: Also this week, the Department of Justice moved to dismiss a lawsuit that you and two other attorneys general filed on FDA changes to the use of the mifepristone pill, which, for those who aren't familiar, can induce abortions.

Were you surprised at the DOJ motion to dismiss?

Labrador: I'm not surprised.

I mean, their job is to represent all, obviously, the United States.

And it's if you look at the the request for a dismissal, it's a very technical request.

They're, arguing that based on basis of standing and it's the same position that the Biden administration took.

And we're going to have to look at whether the court believes that they're standing or not.

And then we'll look at other options there.

Davlin: That lines up with what the Supreme Court wrote about a year ago.

Justice Kavanaugh wrote that, a unanimous opinion that the federal courts are the wrong forum for addressing the plaintiffs concerns about FDA actions.

So will Idaho pursue this in a different venue?

Labrador: We'll see.

I mean, we'll see what the court does and then we'll make a determination of whether, you know, we want to continue to pursue this or not.

Davlin: And in that original lawsuit, it focused on FDA changes in 2016 that allowed doctors to prescribe this up to ten weeks into a pregnancy, as opposed to the original seven weeks.

If you were to go forward with this, do you want to see it go back to the original seven weeks or halt its distribution altogether?

Labrador: Great.

Great question.

So, and I want to be clear, because I read an article before I came to the interview because I was, you know, prepping for the interview and read an article where it said that these lawsuits are trying to prevent women from having access to mifepristone.

That's not what the lawsuit is about at all, it's not about, the legality of mifepristone.

It's about changes that were made in the Biden administration that actually allowed the, like you said, allowed the drug to be used up to an additional time.

But more importantly, it allowed, doctors to prescribe without actually seeing the patient.

And there is some evidence that these drugs are actually have, bad effects on women.

They have a high likelihood of causing some damage in some women.

And what we're asking for is that it goes back to what happened before the Biden administration, changes where you actually have to see a doctor in person.

That you have to have a consultation, that it can't just be prescribed over, over mail.

Davlin: On a related note, with Idaho state abortion ban, except for limited exemptions, you've said multiple times that you think Idaho's current abortion ban includes enough protections for doctors who act in good faith in emergency situations, even if the mother's life isn't immediately, imminently in danger.

And the Saint Luke's attorneys obviously disagree.

I know that you don't typically comment on pending litigation, but or ongoing litigation, but is now the time for lawmakers to clarify this law?

Labrador: No, I think it's clear.

And I think it's pretty funny that, for example, there was a recent case where the judge ruled, for the state in four out of the five claims and then in one claim ruled in favor of the doctor who filed a lawsuit.

But when you read the decision, all he did is he rewrote the statute in a way that he liked better.

Judges are not legislators, so he didn't change the statute in any way.

In fact, all he did is, he clarified, he almost used my words verbatim where he said that there's no immediacy requirement in the law that that as long as a doctor has a good faith belief that the woman's life is in jeopardy, that they can perform the abortion.

That's all I've been saying.

I think the law is really clear, and I do find it interesting that that is Saint Luke's.

That is making a big deal about this.

When you talk to doctors at Saint Luke's, some of the doctors, Saint Luke's, but also doctors, all throughout the state, they seem to understand what the law is, and they seem to find it very clear on on when they can and they cannot perform abortions.

I think they're trying to expand the definition of, of, the exceptions and, and even in this lawsuit where, where the judge ruled a little bit in favor of the doctors, there was really no major change to what the statute already does allow us to do.

Davlin: For the doctors in the hospital, attorneys who are still unsure.

What would you want to tell them?

Labrador: I have told them that I will talk to them.

I will explain to them.

I think there's a huge confusion and I it took me a while to understand why they were so confused about it.

And I did speak to, the chief medical officer of Saint Luke's.

And to me, it was very telling.

He was worried that they were going to start arresting doctors, the same way that doctors get sued over medical malpractice all the time.

I think every doctor in America has probably been sued at one point for medical malpractice.

And and their concern is that the doctors were going to be arrested all the time, like, like, medical malpractice cases.

And I explained to him it's such a different standard when you're doing a civil lawsuit over medical malpractice.

The standard is very low.

And if you have competing doctors, I have competing, analysis of whether the doctor did the right thing or not.

You can you have a good faith belief that you can file a lawsuit in criminal prosecution.

It's a very high burden.

The prosecutor has to have a reasonable, reasonable belief that they will be able to find the doctor guilty beyond a reasonable doubt.

It's such a high standard to me.

And I was telling them, look, as long as a doctor has a good faith belief that this woman's life was in jeopardy again, without any immediacy, not jeopardy today, but that it could lead to her death.

There's no prosecutor in the state of Idaho who's going to prosecute these cases.

And that's what I've been trying to message.

I've been trying to, explain to them.

I do think there's a political angle to this, because I think they want to expand.

I don't think they have a problem with this particular definition.

I think their goal is to expand, the, the allowable exceptions.

Davlin: There.

You say that there are no current prosecutors in the state that might change their elected, you know, every four years.

Labrador: It's very hard to remember beyond a reasonable that you have to get 12 jurors to, to say that this person is guilty beyond a reasonable doubt.

I mean, that's an almost certainty that this person committed the crime.

I think there's enough leeway in the law that I can't imagine that a single prosecutor, again, with a good faith belief, what it's going to prevent is where somebody uses the excuse that the life, the, the, you know, the the life of mothers in jeopardy, you know, over something minor.

But if there's a real technical issue that's going on where the woman is bleeding in in the hospital room, or things that are happening where they think that the woman's life could be in jeopardy and they have a good faith belief.

I cannot conceive of a single prosecutor in Idaho who would do that.

Davlin: On a completely unrelated topic, in late April, the state announced a targeted waiver to Idaho's 1995 agreement with the Department of Energy that would allow a cask of spent fuel to the Idaho National Lab for studying.

You were one of the signatories on that targeted waiver.

What went into your decision to agree to it?

So so there's been, 4 or 5 prior waivers before this one.

And as you know, and, you know, 30 years ago, there were, an agreement between Idaho and the federal government where we needed to get all the fuel, all the spent fuel and all the waste out of Idaho.

And, the federal government has not always been compliant with that.

And the state has done a really good job of going after the federal government.

There have been penalties paid by the federal government.

We we make sure that they keep cleaning up and the cleanup continues.

So nothing in this waiver allowed does anything to to change the the agreement from 1995, however, there's a small, amount of spent fuel that can be used for research capabilities.

And it's in different universities.

And the federal government has some of that.

And we have the facilities here in Idaho to actually do that, conduct that research for the future.

And what we did is we ensured that we continue to protect the agreement that we continue to protect the people of Idaho, but allowed a small amount of spent fuel for, that was research quantity to come into the state.

And we had almost a year of negotiations.

We made sure that Idaho was protected.

One of the main things that that the agreement that the waiver allows is that if we think at any time that the federal government is violating the waiver or violating any of this, we can actually put a stop to any, any new, quantities coming into the state.

Davlin: Which is reminiscent of what happened ten years ago.

In 2015.

There was an attempt to get a waiver, notably at the time, Governors Andrus and Bhatt oppose that vociferously.

Is this happening now?

And this is a broader philosophical question for you.

Is this happening now because technology has changed and the needs have changed, or is it happening because you and Governor Little have a different philosophical approach to this than governor's Baton Andrus?

Labrador: That's a great question.

I think it's both.

I think, number one, that technology has changed.

I think we have new information about how to deal with with nuclear fuel, how to deal with waste.

So there's there's new technology.

I mean, it is 30 years later, I think we do have a need, for nuclear, energy.

I, I'm a big proponent of nuclear energy, and I think that we should be doing something to to, to, actually bring about more, more nuclear energy in the United States.

So that goes to the second part of it is not just do we have technological changes, but yes, I think we do.

I can't speak for Governor Little, but I know that I probably have a different, philosophy them than prior attorneys general on this issue.

Davlin: Are you concerned that staffing and funding cuts at the Department of Energy and elsewhere in the federal government might affect those future clean up deadlines and these goals?

Labrador: I'm not.

And if you remember, it's nothing in the agreement change.

If they don't meet their deadlines, they're going to have to pay a pretty hefty fine.

To the to the state of Idaho.

So nothing changed about that.

And, and I think that that's a great incentive for them to continue to, to, to meet their goals.

Davlin: You signed this waiver with Governor Little.

How is your relationship with him?

Labrador: It's good.

Yeah.

Davlin: Your office is right down the hall.

Labrador: We're just right there.

We don't speak frequently.

No, we we have different schedules and, but, you know, we we on this issues like this.

We work together on on other issues.

We, we don't work as well together.

But I think that's the nature of government.

Davlin: That built in tension.

Absolutely.

Your, last month, the judge ordered that you be deposed in a lawsuit against your office.

The plaintiff's attorney said that it shows that nobody is above the law knowing again that you can't comment on ongoing litigation.

When is it appropriate for someone to say you shouldn't be able to compel this specific person to testify?

Labrador: This is a great question.

So, first of all, I thought that was a ridiculous comment because I wasn't saying that we were above the law.

In fact, we had already informed the plaintiffs attorneys then that I wasn't available on that date, that I wasn't going to be able to to show up on that date, and that we had a motion, pending before that, we were going to file a motion with the court to not compel me to testify.

And this is a, a separation of powers issue.

There's there's the doctrine of separation of powers, where usually elected officials are not deposed in, in litigation.

And this goes back, you know, every, every single, just about every single, jurisdiction in the United States understands that you don't deposed an elected official unless there's information that only that person has.

Because most of the decisions that we make in the office, they're based on information that I received from from an underling, from somebody that works for me.

They bring me the information, I analyze it, I make a decision, and all the information they're asking for is can, can be obtained from from other people.

So we've actually appealed the judge's actually we file a motion for reconsideration of that decision.

And if the judge doesn't agree with us, we're probably going to be requesting the Supreme Court, because this is this is a larger issue.

I mean, imagine if I get sued in the state of Idaho almost every day, as the attorney general, imagine if I have to attend depositions for every single time that the state of Idaho is sued on any issue, and any time that I make a public comment about a litigation.

One of the reasons I don't talk about litigation a lot, but, but it it's a doctrine that that is prevalent in the United States.

And I think the judge made a mistake in this in this case, because they can obtain the information through other means.

And if it's information that they can obtain from me personally, they can do it through interrogatories.

They don't have to do it through a deposition.

Davlin: I'm taking a step back from the specific case.

Historically nationwide, criticizing the judiciary isn't anything new.

But are you worried about the tone of recent criticisms of judges and justices that might ultimately undermine respect and trust in the rule of law?

Labrador: You know, I think we see it from both sides, when, you know, when when it's, a liberal judge who makes a decision, you get criticism from the right.

When there's a conservative judge who makes a decision, you get criticism from the left.

I think America is strong enough to and to actually endure and and withstand criticism.

I think our institutions are strong enough.

I think we need to be a little bit careful, with our rhetoric.

You know, I have no problem criticizing a judicial opinion.

I just don't think we should get personal in in the attacks on the judicial area.

But if somebody if a judge makes a bad decision, I think I have a right and a duty to inform the public that I disagree with that decision.

As long as I'm not getting personal in, in, in my criticisms.

Davlin: Not just when we're talking about the judiciary, but are you comfortable with the tone of rhetoric right now in this country?

Labrador: You know, it's a little interesting.

Going back to the first issue that we talked about.

I found it fascinating.

I sent the letter, if you read my letter that I sent to the mayor, it was a letter that we crafted very carefully because we didn't want it to be threatening.

We didn't want to add to the rhetoric to to be partisan in any way.

I was just informing her and the public about what, you know, what her duties were and what my duties and responsibilities as attorney general were.

And her response to me was that I was threatening her.

And and I think sometimes both sides at times can, can sort of take a, a victim mentality that, you know, if somebody's disagreeing with me, they're actually doing something bad.

I think, you know, if you remember the founders and, and, and you remember the first years of, of the Constitution, the first year of this nation, there was there was a lot of acrimony.

I mean, we we had a war over becoming, an independent nation.

You had, you know, in Congress, I always laugh when people would tell me when I was in Congress that, you know, you guys are so mean to each other.

So you people used to keep each other, on the on the legislative floor.

They used to, you know, invite each other to duels.

So we have a history of this.

We do need to tone down the rhetoric.

We need to talk to each other.

But we also have major philosophical differences.

And I think it's healthy when the public talks about those issues.

Davlin: We only have a couple of minutes left, but I did want to get an update on your offices efforts to fight child exploitation.

The ICAC unit has been around for years, but technology is also advancing.

Does the state have enough resources to keep up with these threats?

Labrador: So we never have enough resources to keep up with the threats.

But since I became attorney general, I made that my number one priority.

We changed the leadership on our ICAC unit.

We changed the methods that we were using to combat ICAC cases, ICAC the Internet Crimes Against Children division, where we go after the bad guys that are exploiting children and putting pictures of children online, or trying to take pictures of children online.

And I'm very proud of this.

Over the last year, we have actually arrested and prosecuted more people in the previous three years combined because of the changes that I made to the office.

And as you know, we also brought in a dog that is, our new, trained dog that goes whenever we go, on and, you know, on search warrants, if you go into a home and one of these bad people is actually hiding the devices that they're using, either the phones or the SD cards or anything like that, this dog is trained to actually, find those devices.

It's pretty amazing what what the dog can do that.

Davlin: That's remarkable.

Until your office announced that I didn't know that dogs were capable of finding technology.

Labrador: I didn't know that either.

And they came to me with that information.

And the cool thing about this dog is that it has a dual purpose.

It obviously does that, you know, does the law enforcement aspect.

But if we have victims that we find when we're doing the search, it's also able to, be an empathy dog is able to work with, with the victims and, and just calm them down.

So it's a therapy dog as well.

Davlin: We have about a minute left.

Are you ready to announce your plans for 2026?

Labrador: I am not I'm you know, my philosophy has always been to just do a really good job in what I'm doing and then let the elections take care of themselves so.

Davlin: You do you you do have a decision to make coming up next spring, though.

What are you going to factor in to that decision?

Labrador: I'm just looking at all the things that are happening.

I'm really liking this job.

I'm enjoying it.

I think you know that.

I never really want it to be attorney general.

I was asked for 20 years to run for attorney general, and I never really thought about a job.

It was a job that I wanted to do and I have enjoyed it so much.

So I think I'm pretty happy with what I'm doing, and I will continue to look at all my options, but I'm pretty happy doing what I'm doing.

Davlin: Attorney General Raúl Labrador, thank you so much for joining us, and thank you for watching.

We have more online.

You can find that coverage at Idaho reports.org.

Thanks for watching.

And we'll see you right here next week.

Narrator: Presentation of Idaho Reports on Idaho Public Television is made possible through the generous support of the Laura Moore Cunningham Foundation, committed to fulfilling the Moore and Bettis family legacy of building the great state of Idaho.

By the Friends of Idaho Public Television and by the Corporation for Public Broadcasting.