Okay, one more time for those in the media or voters who've been compelled to watch too many campaign commercials.
As a matter of law (and fact), the Virginia Attorney General (AG) is neither the “top prosecutor” nor “the chief law enforcement officer” in Virginia.
The Virginia constitution says nothing about the AG’s duties except that they shall be prescribed by law. No where in the Constitution or the Code is the AG characterized as a part of law enforcement, much less, the “chief law enforcement officer.”
As I point out in this blog post (which I wrote first in 2005 and updated in 2024 in anticipation of this election cycle), the Virginia AG has lots of responsibilities. The first is that the AG is an executive branch official who is the “chief executive officer of the Department of Law.”
The AG is the general counsel for the Commonwealth of Virginia charged with providing all legal services to state agencies in civil matters, and the Commonwealth in all federal matters. The AG is responsible for protecting the people’s interest in charities. The AG is the consumer counsel, and a quasi-judicial officer when they issue opinions, In 2020, the AG was given responsibility to investigate and prosecute police misconduct.
Regarding criminal prosecutorial authority, however, the Virginia Code says this: “A. Unless specifically requested by the Governor to do so, the Attorney General shall have no authority to institute or conduct criminal prosecutions in the circuit courts of the Commonwealth except in [certain specified] cases." ... “In all other criminal cases in the circuit courts, except where the law provides otherwise, the authority of the Attorney General to appear or participate in the proceedings shall attach when the appellate court receives the record after a notice of appeal has been filed with the clerk of the circuit court noting an appeal to the Court of Appeals or the Supreme Court.”
So, although the AG does have some prosecutorial authority by statute (e.g., prosecuting the unlicensed practice of law, fraud or theft of state property, some complex computer crimes, some environmental crimes), the Commonwealth’s Attorneys are the constitutional officers who are the state’s primary prosecutors.
A person cannot be said to be the Commonwealth’s top prosecutor when they have NO constitutional authority to prosecute crimes and only limited prosecutorial authority explicitly given to them by statute. They can't be said to the the Commonwealth's top prosecutor when they have NO oversight of the constitutional officers who are the Commonwealth’s chief prosecutors. They can't be said to be the Commonwealth's "chief law enforcement officer," when, unlike Commonwealth's Attorneys who, are by statute defined as being part of “the department of law enforcement of the county or city in which he is elected or appointed,” the AG has no statutory leadership role or organizational authority over any law enforcement officials.
As a final note, in the past four decades (1986 to 2025), Virginia has had 13 Attorneys General, some elected and some appointed. Six had prosecutorial experience before taking office, seven did not. For the record, the six with prosecutorial experience before taking office were: Mary Sue Terry (D), Jim Gilmore (R), Richard Cullen (R), Jerry Kilgore (R), Bob McDonnell (R), and Jason Miyares (R). The seven without were: Stephen Rosenthal (I), Mark Earley (R), Randy Beales (R), Judith Jagdmann (R), Bill Mims (R), Ken Cuccinelli (R), and Mark Herring (D).
Regardless of their personal experience, people running for AG often gravitate to calling themselves titles that enable them to capitalize on “tough on crime” polling data. Nonetheless, I urge Virginians not to fall for this political gamesmanship. Those touting the so-called prosecutorial “qualification” for those who run for the office of Virginia Attorney General are simply making a play to capitalize on polling data rather than a describing the actual experience a candidate needs to serve as the chief executive officer of the "Commonwealth's law firm" with more than 500 employees and a budget of nearly $60 million.
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