NY AG Letitia James called the NRA a 'terrorist organization.' Will it hurt her case?
ALBANY, N.Y. – Two years ago, Letitia James – then a candidate for New York attorney general – made a provocative campaign promise.
The National Rifle Association, the nation's preeminent guns-rights group, had a "poisonous agenda" that was "directly antithetical" to New York's tough gun-control laws, James said at the time.
She vowed to investigate the powerful and controversial group to determine whether it should keep its charitable status, making it the first plank of her plan to combat gun violence.
"The NRA is an organ of deadly propaganda masquerading as a charity for public good," the plan read. "Its agenda is set by gun-makers who think arming teachers is a better idea than making it harder for kids to get military grade guns."
Two years later, James – now the attorney general – made good on her pledge, filing a lawsuit this month alleging a wide array of fraud and corruption at the NRA. James says it is enough to warrant shutting down the 148-year-old organization.
The NRA wasted no time in using James' campaign comments against her, filing a counter suit accusing the Democrat of displaying a preconceived outcome that guided her investigation into the organization and violated its First Amendment rights.
Ultimately, it will be up to the state courts to determine whether James' prior remarks will hurt her headline-grabbing case, which seeks to dissolve the NRA and oust longtime executive vice president and CEO Wayne LaPierre.
"It's never helpful for any prosecutor to show any bias against a potential target in advance of litigation," said Sean Delany, a Westchester attorney who led the Charities Bureau of the New York attorney general's office in the late 1990s. "But given the amount of wrongdoing alleged in the complaint, which draws a picture of a cesspool of fraud, it's hard to believe that the attorney general won't be able to prevail if she can prove even a fraction of those allegations."
James has been critical of the NRA
James, then the New York City public advocate and a former City Council member, made no secret of her disdain for the NRA during her 2018 campaign.
Along with the comments sprinkled in her anti-gun-violence plan, James also called the NRA a "criminal enterprise" and a "terrorist organization" in interviews and a debate prior to her November 2018 election, saying an investigation into the group would be her "top issue" if elected.
"The NRA holds (itself) out as a charitable organization, but in fact, (it) really (is) a terrorist organization," James said in a 2018 interview with Ebony magazine.
Those comments, along with the quotes from her anti-gun-violence campaign, are at the center of the NRA's countersuit, which seeks to severely limit the scope of James' ongoing investigation and force the state to pay the organization for damages.
In short, the NRA claims James unfairly targeted the organization for investigation because she disagrees with its efforts to stop gun-control laws, violating its free-speech and equal-protection rights.
"James's threatened, and actual, regulatory reprisals are a blatant and malicious retaliation campaign against the NRA and its constituents based on her disagreement with the content of their speech," according to the NRA's lawsuit.
Is the NRA trying to distract?
James contends the NRA is simply trying to take away from the widespread fraud and corruption alleged in her lawsuit.
The suit, filed Aug. 6 in state Supreme Court in Manhattan, lays out a series of highly detailed, specific accusations across more than 160 pages. The NRA, LaPierre and three other current and former organization leaders are named as defendants.
Much of it focuses on LaPierre, who is accused of using the longstanding organization to enrich himself and support his family's lavish lifestyle, wasting millions of dollars on private travel, including eight trips to the Bahamas and use of a yacht with four staterooms, a jet boat and two jet skis.
LaPierre is also accused of engineering a post-employment contract without NRA board approval that guarantees him a lifetime salary even if he is let go. That contract is currently worth about $17 million, according to James' lawsuit.
LaPierre and the NRA are also accused of hiding spending in a number of ways, including by having Ackerman McQueen – the NRA's longtime advertising firm – cover travel and entertainment expenses before billing the organization for reimbursement.
That allegedly fraudulent relationship allowed LaPierre to file false personal tax returns, according to the lawsuit.
The NRA's countersuit is just an attempt to divert attention away from the organization's "deep-rooted" fraud, James said in a statement.
"The facts speak for themselves, and our lawsuit will continue undeterred," she said.
James has civil jurisdiction to investigate and regulate the NRA because the organization was chartered in New York way back in 1871, when it was formed to promote marksmanship.
Pursuing the dissolution of a charity is the most severe form of punishment the attorney general's office can pursue against a not-for-profit organization. And the NRA is the most prominent organization the state has sought that punishment against.
NRA known to defend aggressively
Ted De Barbieri, an associate professor at Albany Law School who specializes in nonprofit law, said the NRA has a history of aggressively defending itself against litigation.
Using James' campaign comments in its countersuit fits into that playbook, he said.
"Based on what I know of the NRA's litigation strategy in the past, they are very aggressive," he said. "They're going to use all the legal tools they have available."
James is not the first New York official the NRA has accused of violating its First Amendment rights by highlighting critical comments that preceded state action.
In 2018, the NRA filed a lawsuit against the Gov. Andrew Cuomo and the state Department of Financial Services over state actions that dissuaded major insurers from doing business with the organization.
Later in the year, U.S. District Judge Thomas McAvoy dismissed much of the NRA's lawsuit. But he allowed the NRA to continue with its claim that Cuomo and the state agency violated its freedom-of-speech rights by making direct and implied threats against insurers that were in business with the organization.
“The allegations ... are sufficient to make out plausible First Amendment freedom-of-speech claims,” McAvoy wrote at the time.
James said her investigation's conclusions are based on the NRA's action and clear violations of New York's charity laws – not her position on gun control.
"This is not a question of the moment that I've been waiting for," she said Aug. 6, the day she filed her lawsuit.
"This is a question again of following the facts and applying the law, and when you apply the law, the only conclusion you can come to is that these four individual defendants and the NRA and all of its directors and officers violated the law."
Follow Jon Campbell on Twitter: @JonCampbellGAN