Missouri Attorney General Eric Schmitt has a mask problem.
The Republican won his party’s primary for U.S. Senate on Aug. 2, and he used his public office as a launching pad for the run. That included a campaign of filing dozens of lawsuits against school districts in ºüÀêÊÓƵ and across the state opposing mask-wearing policies during the COVID-19 pandemic.
Schmitt went to war against masks, diminishing the seriousness of the pandemic. Last week, he continued his anti-mask crusade, signing on to a legal filing with more than a dozen other Republican attorneys general opposing the appeal of a ruling that blocked the Centers for Disease Control and Prevention from enforcing a mask mandate on airline travelers.
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The anti-mask gambit has worked, politically speaking. But it also creates a legal dilemma for the attorney general, who faces Democrat Trudy Busch Valentine and independent John Wood in the November election for Senate.
That’s because in another one of Schmitt’s lawsuits, he takes a polar opposite view — arguing that masks save lives.
His pro-mask view is right there in black and white, in a legal document in the granddaddy of all of his frivolous lawsuits — the one against China, the one that was dismissed last month by U.S. District Judge Stephen N. Limbaugh Jr.
Before the lawsuit was tossed on the judicial trash heap, Schmitt’s office filed a last-ditch motion in May explaining its theory of the case to Limbaugh. Nobody paid attention to it at the time because nobody was taking that lawsuit seriously. In short, Schmitt’s office argues, the pandemic was deadly and very, very bad for “literally every Missourian.â€
This is hardly news to most of us, but for Schmitt to recognize it in a legal document is surprising considering his public statements.
Second, Schmitt argued, China made the pandemic worse by hoarding life-saving masks. That’s right, to win the case against China (he has appealed its dismissal), Schmitt would have to prove that China hoarded masks and also that those masks are life-saving — a necessary tool for public health officials to ease the suffering of the pandemic.
Again, don’t take my word for it. Here’s what Schmitt’s office wrote in the brief:
China’s “hoarding of (personal protective equipment) has adversely impaired the ability of health care providers throughout the world, including … in Missouri, from safely and effectively treating patients with the virus,†Schmitt’s brief reads.
One section of the brief argues: “China did not just stop selling masks — it also bought up much of the rest of the world’s supply.†Later, the brief claims that China sold “faulty masks†to Missouri and that left “countless medical providers, public officials, and private consumers vulnerable to the then-novel coronavirus.â€
It goes on to say that the “repeated breaches†by China “have been injurious to — and have significantly interfered with — the lives, health, and safety of substantial numbers of Missouri residents, ruining lives and damaging the public order and economy of the State of Missouri.â€
Then there’s this: China’s hoarding, the brief says, significantly “impeded the ability of the medical community and others to stop the spread of COVID-19.â€
To help make his case, Schmitt linked to about China hoarding high-quality masks.
At the same time, Schmitt was conspiring with private attorneys to file lawsuits to stop school districts from requiring masks, arguing in those cases the opposite position. “Masks simply do not work to stop the spread of COVID-19,†Schmitt wrote in announcing some of those lawsuits earlier this year.
The flip-flopping might be easily written off by some as partisan primary politics. But even while campaigning, Schmitt is still the state’s attorney general, and some of the lawsuits with contradicting positions are still moving through the court system, and creating a certain amount of chaos in the public health world.
Perhaps the contradiction in positions can explain why Schmitt is hiding from the public his communication with private attorneys. After Schmitt announced the lawsuits against school districts, in conjunction with private attorneys who would represent parents in the same lawsuits, I asked Schmitt’s office for the agreements he had with those attorneys.
He said there were none. So I asked for their emails. He said they were closed records. So I reminded Schmitt — who is supposed to enforce the Sunshine Law — that the state’s open records law required only portions of closed records to be redacted, not for them just to be summarily denied.
Months later, about the same time Schmitt was telling a federal judge that masks work, I received more than 1,000 documents from Schmitt’s office. Nearly all of them were completely blacked out.
It’s no wonder that the Missouri attorney general doesn’t want members of the public to see his communications with private attorneys involved in his mask lawsuits.
In one lawsuit, he argues masks work. In the others, he argues they’re useless.
The good news for Schmitt’s campaign is that in both state and federal court, judges keep shredding his lawsuits as the worthless sheets of paper they are. They have saved Missouri’s attorney general from the public spectacle of having karma run roughshod over his ever-changing dogma.