Missouri Attorney General Andrew Bailey wants me to write about China.
He said so in a social media post on Sunday. Bailey, who has declined every interview request I’ve ever made, was responding to a post of mine.
“Has @AGAndrewBailey sued France yet?†I wrote.
It was a bit of playful sarcasm after right-wing candidates in France suffered an unexpected defeat in their parliamentary elections. Bailey is prolific at filing frivolous lawsuits in which Missouri has little or no standing.
Just last week, for instance, he asked the U.S. Supreme Court to postpone Donald Trump’s sentencing after a New York jury found the former president, and current Republican candidate for president, guilty of 34 felonies involving campaign finance fraud and hush-money paid to a former porn star. Bailey believes — or is pretending to believe — that he has standing to inject Missouri into a New York case.
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The result will likely be similar to the U.S. Supreme Court opinion issued last month in a case filed by Bailey’s predecessor — current U.S. Sen. Eric Schmitt — accusing President Joe Biden’s administration of censoring social media posts during the COVID-19 pandemic. authored by Justice Amy Coney Barrett, the Supreme Court sent the lawsuit back to district court, saying none of the defendants, including Missouri, had standing to bring the case.
It was a clear loss for Bailey, who had been trumpeting the lawsuit as the most important First Amendment case in history. Somehow, he tried to spin his loss as a victory.
That’s the same thing he did Sunday night about China. Regular readers will remember that Schmitt, during his run for the Senate, filed a lawsuit against China, the Communist Party and other Chinese entities. He blamed them for the pandemic and was seeking redress on behalf of Missouri residents. It was the mother of all frivolous lawsuits, mostly because federal law makes it virtually impossible for a state to file such a lawsuit against a foreign entity.
For more than four years, the lawsuit has languished in federal court with little action. China and the various entities have never responded, let alone been properly served. Last year, U.S. District Judge Stephen Limbaugh tossed the lawsuit. Bailey appealed to the Eighth Circuit Court of Appeals.
That’s what he wanted to tell me about.
“No,†he has not sued France, he wrote on the social media platform X in response to my question, adding, “but my team did land a huge win against China. Feel free to report on that.â€
Challenge accepted.
No, but my team did land a huge win against China.
— Attorney General Andrew Bailey (@AGAndrewBailey)
Feel free to report on that.
Bailey has an interesting interpretation of a legal win. Here’s what the Eighth Circuit Court wrote in January, when it allowed just one count of the lawsuit against China to survive.
“It turns out that the Foreign Sovereign Immunities Act stands in the way of most of its claims,†the appeals court wrote. “Just one survives: the allegation that China hoarded personal-protective equipment while the rest of the world was in the dark about the disease. We reverse the dismissal of Missouri’s hoarding claim, but otherwise affirm.â€
Most lawyers I know who read the ruling see it as a loss for the attorney general, including his two opponents in the race for the seat he currently occupies.
“Andrew Bailey has a seemingly unique ability to lose winnable cases,†Republican Will Scharf told me via text, recognizing the appeals court ruling as a loss.
Democrat Elad Gross agrees: “Maybe he didn’t read the Eighth Circuit opinion, but he lost on every claim except one … Andrew Bailey has continually flushed our money down the toilet on attention-seeking, baseless lawsuits while being entirely incapable of managing the basic functions of his office.â€
To the extent that Bailey now gets to have a sham trial — currently scheduled for December — against defendants who won’t show up, well, I suppose that’s a win of sorts.
But it also puts Bailey in the same position Schmitt was in when trying the save the lawsuit: In order to prove China was hoarding masks and that its actions killed Missourians, the attorney general has to argue that masks work.
This is anathema to current Republican Party orthodoxy. And several other frivolous lawsuits the previous and current attorney general have filed — against counties and school districts, for instance — made the exact opposite argument about masks.
In fact, in the First Amendment case — the one turned away by the U.S. Supreme Court — Bailey railed against the federal government for pushing masks as a part of its pandemic response. Here’s about that case before the U.S. House last year:
“When we see forced mask mandates that aren’t backed up by science or evidence, when we see the suppression of conversations about the effectiveness of masks, those undermine the rule of law and they reduce the credibility of the outcome of the conversation because it’s an unfair debate,†Bailey said.
Now, thanks to his “huge†win on the China lawsuit, Bailey gets to have a debate with himself on masks. Masks save lives, he’ll say for the China lawsuit, in an empty courtroom with no defendants. It will be among the most honest things he has said all year.
I hope he gets a huge win.