Indiana AG Todd Rokita shares agenda with Indiana Lawyer


IL: Tell me about the impetus behind the Big Tech investigation and its parameters.
Rokita: First of all, to understand why we’re doing any of this, is to preserve as much individual liberty as we possibly can in whatever we do. This is not the first day I’ve worn a tie that has the Constitution written on it. It’s a bit of a reminder for me and for my staff about why we’re here, what I intend to do, in an office that has a lot of discretion, quite frankly. And so when it comes to the Big Tech, it’s an investigation right now, so it’s not necessarily a legal theory yet. We’re going to go where the investigation takes us, so that’s what should be the purpose of any investigation – any honest one, that is, so we’re going to do that. But we’re looking for whether or not Indiana’s consumer protection laws were violated. And that’s perhaps some of the uniqueness of this is that, when you think of these platforms and their censorship, you immediately try to go to the First Amendment, but you realize then very quickly that this is a private company. But even so, they in what they withhold and what they censor, they are not – even if you think that they’re not subject to the First Amendment, they’re still subject to state consumer protection laws, like our Deceptive Consumer Sales Practice (Act). So that’s what this investigation is aiming to find out. You know, by withholding information, and determining what their motives were for withholding information, or censoring books if you’re Amazon, so to speak, or any of these other practices these five Big Tech firms do, are they deceiving consumers? We have other cases in the commercial realm where by withholding information, it has led to a deceptive practice, a deceptive act. Has that been done here, whether it’s selling a book or whether it’s in the vein of political consumption? As consumers, we process all kinds of ideological, political, governmental information in order to make a consumer choice: Who should our elected officials be? So based on the facts that we get back, would there be a count and a complaint that would indicate a violation of a deceptive consumer sales practice in that realm, as well?

How did the issue of Big Tech censorship come to your attention?
Because I watch TV and listen to the radio. I see this happening every day, to everywhere I go around the state. I ask in my speeches, whether it’s a chamber of commerce event, whether it’s any kind of grassroots events, I ask them to raise their hands, “How many people have been taken down or censored by Big Tech?” And hands go up; it’s surprising to me. And then there’s my own personal experience. … That’s not the only reason to do it, but I do see that it’s a problem throughout the state of Indiana when people raise their hands, and it’s a problem across the United States. So, we’ve also joined other lawsuits from other states that are looking at other aspects of Google’s and Big Tech’s operations, from the way they divide up ad revenue to antitrust violations.

Are you investigation censorship of conservative speech specifically or censorship more generally?
Well I think it’s censorship more generally. The facts on the ground are suggesting that it’s only happening on one side, but certainly if it happened to liberals, too, I’d be just as interested, it’d help prove my case. But I just haven’t seen that unicorn.

You’ve added Indiana to the federal lawsuit challenging the Biden administration’s estimation of the “social cost of carbon.” Tell me about that and other lawsuits you’ve joined Indiana to.
There’s ones we’re looking at, a couple more that we’ve joined. We’ve also signed letters. … The point is, unfortunately for liberty, there’s an embarrassment of riches coming from the Biden administration in terms of federal government overreach and limiting liberty in our daily lives. For example, we joined other states in writing a letter to the Biden administration on their poor decision to stop the Keystone Pipeline. We filed a lawsuit with other states on the social costs of carbon, because there, like the Keystone Pipeline, not only do you lose jobs, not only is the cost of energy going to increase for it, but with the social cost of carbon, they literally pulled out of thin air a $9.5 trillion number and said, “This is the social cost of carbon.” OK, what is social cost? Oh, the effect of carbon on war and poverty and other things that you can’t possibly measure. Nonetheless, they pull this $9.5 trillion number out of the air, and then they direct every agency in the federal government to go write regulations to offset that so-called cost of $9.5 trillion. So to regulate $9.5 trillion in offset means that you are going to regulate in a way that raises the cost of fuel. So you already see the cost of gas going up right now because of general inflation, but once these regulations go into effect and they come up with $9.5 trillion worth of regulations – because the federal government measures this, as part of the rule-making process you’re supposed to say how much it cost – there’s a mechanism, you can argue the accuracy of it, there’s a mechanism for actually determining the cost of a regulation, and that’s by federal law. So they are literally going to come up with regulations that cost consumers $9.5 trillion. That limits your liberty. If you can’t spend your money on discretionary items, things that you choose to spend it on, but instead have to spend the money just to heat your house, just to put gas in your car, your liberty is diminished, and we’re going to fight against that, because from Day One that’s been the focus of our office, is liberty in action.

And then we’re going fight on the right to life. You can’t have these other rights and responsibilities if you don’t, if you’re not protecting the unborn, if you’re not protecting life and the unborn, including the unborn. You’ll see us do that. You’ll see us fight for your individual right to protect yourself and your family, and that’s the Second Amendment, of course. You’re going to see us fight for your liberty to have your vote not be diluted by someone else’s cheating. And this is something, quite honestly, I didn’t expect to have to come back to at this point in my career. As secretary of state, we were the first election in the country to mandate statewide a voter photo voter ID. I got sued four times, and ironically it was our current solicitor general Tom Fisher, who was solicitor general then, and we went to the United States Supreme Court together through the 7th Circuit, and we won 6-3 in a court that was more liberal than this one is. And now 32 states have a similar law that is protected because we went through that gauntlet. And here we are again, fighting the same issue plus more. Basically every bad practice from last fall the Democrats in Congress and in the Senate want to codify and make it the law of the land, despite the fact that the Constitution is terribly clear that the time, manner and place of elections is a state function. And the reason for that is you’re decentralizing power as much as possible, and every time you do that, no matter if it’s an election issue or any other type of issue, you preserve more individual liberty. It’s the same reason I’m not necessarily coming out strong to take the discretion of prosecutors even though we have one that’s making terrible decisions in terms of the red flag law and categorically not prosecuting crimes here in Marion County. I don’t agree with those decisions, but you didn’t see us outwardly support legislation this term to usurp those powers, because at the end of the day, it’s only by decentralizing power as much as possible that you maintain as much individual liberty as you can. And centralizing that power up to my office doesn’t necessarily make sense to me. The solution is for the people to change the prosecutor.

Did you take a position on the bill regarding non-compliant prosecutors?
We had some private discussions, a few. I was never asked about the bill. … I was never asked by the bill’s authors.

On HEA 1123, did the governor approach you before he filed the lawsuit?
We’ve had several conversations. Was I approached? How the process works is we are asked by any agency or any officeholder to give our approval for outside counsel. The governor and I had generally talked about his concerns of 1123 before any of that, when I first got to the Statehouse, and that went well, and it goes well today. We’re very cordial, we’re friends, I like him, and this is not about that he got chosen by 22 voters in 2016 over me, because a week after that whole thing I threw him a $30,000 fundraiser, so it was never against Eric Holcomb. I was simply offering, in that very odd situation, very rare situation, what I had to offer to solve the problem, and the decision was made and we went on and of course support him. But after that, eventually once the law was passed, they asked us for outside counsel. We looked at it, we looked at it at every angle for a number of days and then wrote him a 10-page or so analysis of the situation, and I asked him to consider this before he did anything else, and then I went and briefed him personally on it, and our staffs had probably three more conversations. The bottom line is, you can’t claim you want to try to preserve the constitution if you’re going to break a law to do it, and there is clear statute, on record, on the books, for good reason, that this office speaks as a legal voice for the state. And the client is the state, and sometimes that means defending agencies, sometimes that means defending officeholders, sometimes that means defending statutes. But the state of Indiana goes into court with one legal voice, and that’s the reason for that statute, and it’s a very important, because otherwise you’d have officeholders suing officeholders, you’d have branches of government suing branches of government, just because they have an opinion that’s different from the other and that’s not reason to sue. When I have literally thousands of other cases that I defend or prosecute relying on these very same concepts, it’s absolutely important that we go into court with precedent –which this is decades old – caselaw and statutory, and be able to make consistent arguments in front of the people that make the decision. There’s also been talk of that I might not understand that the judicial branch makes the ultimate constitutional decision – of course they do. I make the decision inside of state government as to what different parts of it, what legal policies they take to court and what they don’t. And Judge Easterbrook of the 7th Circuit discussed this, and this was part of my analysis to the governor. There’s a case that he ruled on where the South Bend City Council had a difference of opinion, I believe, from the South Bend mayor – completely analogous. And the judge said at the time, because they wanted to go sue each other, and the judge in the 7th circuit at that time said, look, you never see, in terms of General Motors – he made an analogy to a company – you never see Buick sue Chevrolet. A customer may sue one or the other or sue General Motors, but you never see those two, because that’s the job of the general counsel of General Motors. You don’t go to court over that. And that’s the very same thing here. You don’t go to court because one branch disagrees with another branch. But when there is an injured third party who otherwise has standing, we will defend the statute like we would defend any other statute promulgated by the General Assembly.

Do you think HEA 1123 is constitutional?
We’re going to defend it like we defend every other statute. I don’t want to personalize this. We would find it constitutional, because it doesn’t curtail the governor’s constitutional ability whatsoever. Meanwhile, it is an example of the power the General Assembly does have, by virtue of the constitution, to set its meetings in a time as time set by law.

You’ve been in office 100 days. What’s next?
We’ve been accused of being very, very active. I use the word “accused” because everyone takes that to mean I’m doing it for some ambitious political reason. And I’m really quite amazed at that kind of comment. I’m just doing what I thought was the job of a statewide officeholder. When I was secretary of state, we went to every county every year for eight years. No joke, we would drive over 50,000 miles a year. I guess maybe that’s not done anymore and people are shocked by it, but I am retail. I get my information, I get my marching orders, like when you asked me about Big Tech, I get that from being with Hoosiers, just interacting with them. So that’s the kind of approach I’ve always taken, that’s what we’re going to do here, and we’re going to continue doing it. Quite honestly, with COVID, I’d say my throttle is about halfway down right now – my staff’s gasping, but really. There was no rhyme or reason to where I’m going. We’re just kind of going to where I’m invited to go. It turns out that the Indiana Republican organizations around the state have been the ones that have been open to in-person meetings, and I’m not scared about those. We’ve also participated in a couple chamber of commerce meetings that were in-person and a couple that have been virtual, but it’s been sort of hard to find different in-person, a wide spectrum of in-person meetings coming out of this COVID situation.

I think that’s important to know that I’m going be on the ground, we’re going be retail, and that just means me doing my job in my mind. Politics will sort itself out later. But what are we doing? Well, it’s going to be more of what I promised. It’s going to be Big Tech, it’s going to be rights to liberty and responsibilities. I have a speech I talk about that in particular, that it’s not just about freedom, it’s about liberty, which is freedom with responsibility. I see liberty as ordered freedom, and I think we need a civics discussion around that. Yes, you have the right to free speech. Yyou don’t have the right to destroy property – you have a responsibility not to destroy property, and so we’re going around the state with that kind of message. And that folds into the things that we promised to do, whether it’s election reform issues, fighting on Big Tech, exploring what we’re going do to hold China accountable, which is something I talked about during the campaign, or whether it’s even on things like 1123, where we’re preserving as much individual liberty as possible because there, assuming constitutionality, the group of people that are most accountable to individual voters and taxpayers is the General Assembly, if nothing else by virtue of the fact that most of them, two-thirds of them, are elected every two years. So, to the extent there’s politics behind all that, that’s the only politics, is preserving individual liberty, and the rest will sort itself out.•

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