Michael C. Walsh is the Republican nominee for attorney general of Massachusetts, challenging Democratic incumbent Andrea Campbell. From Lynnfield, Massachusetts, Walsh is a general practice litigator with years of experience in various legal forums across the state, such as the Land Court, Labor Relations Commission, criminal courts, and military courts. Walsh graduated from Suffolk University as the youngest graduate in its history, obtaining his bachelor’s degree at age 17 and his J.D. at 21. He has been involved in litigating various cases against the current attorney general, among them one challenging the execution of the MBTA Communities Act.
This interview has been edited for length and clarity
Harvard Political Review: What motivated you to run for attorney general this election cycle?
Michael Walsh: I have a small name to myself because I’ve been going around giving lectures about MBTA zoning, which is a program designed to create small high-density districts. I’m opposed to it, and I’ve been lecturing on local control. But in terms of getting inspired, a guy by the name of John Deaton, who’s running for U.S Senate, was putting together a bipartisan coalition to try and privately enforce the legislative audit. He asked for my help, and I helped him write it up, and then he gave a press conference announcing that he’d filed a suit, and he was very inspiring. He was a fire of rhetorical oratory. He argued about government being out of touch, and to a greater or lesser degree about arrogance on Beacon Hill, and I was so inspired, I went right across the street and pulled up papers that same day.
HPR: What would you do in your first 100 days? You talked about the MBTA already, but what would be your main priorities, and how would we know whether you succeeded in those priorities?
MW: Some of these are policy, some of these are political, and they sort of mesh. But the first thing is that I promise to try and enforce the audit, which typically involves a Superior Court enforcement action based off summons that have already been issued by the auditor. And obviously, you would be able to measure the success or failure of that based on whether or not there was some kind of agreement, or records were coughed up, and the auditor was slated to continue with their work.
I’ve also promised to try and get serious about the attorney general’s intervention with the DPU [Department of Public Utilities] Commission. Gas and electric, and a very small number of water companies, are regulated by DPU, which is a governor-appointed commission. They sit like a court, though, so the utility commission comes in and they do investigations. The attorney general, by statute, is the chief ratepayer’s advocate, which means that the attorney general is supposed to be keeping ratepayers’ bills low, and there have been a bunch of charges and other things that have been added in the last year and a half that in many, but not all cases, have doubled people’s bills. The charges for the delivery are now almost as bad as the actual use piece. And as a result, I want to try and attack those charges and see if we can pull them off.
Now, the utility companies, when they got them approved, took the position that they were required by the clean energy mandate laws. I am of the belief, based on an older strain of constitutional case law, that the ratepayers cannot be forced to pay anything other than the delivery of the utility that they’re subscribing to and a reasonable rate of return for the utility. I think it is unconstitutional to put those charges on the bill, and so I want to challenge them in front of the DPU and the courts, if necessary. That should be pretty easy to stand up within 100 days or so.
HPR: How would you handle credible claims of misconduct by police, prosecutors, or other public officials?
MW: Credible claims of misconduct need to be investigated. The promise I’m making is to be a non-political [attorney general] and enforce all the laws equally against everyone. If you are a policeman and you are accused of a self-defense shooting, you should get the same treatment as any other homeowner who was accused of a self-defense shooting. I’m not going to be anti-police. I also think that they’re allowed a comfortable cushion of room to make mistakes. On the other hand, there are bad eggs. We see it in the newspapers all the time. Particularly when there’s malicious intent, when there’s theft, dishonesty, lack of integrity, those kinds of things need to be policed very heavily. We in our civil service system say that the police need to be held to a higher standard, and they all agree to that. Let’s enforce it, so to speak.
HPR: What is your standard for opening, declining, or closing a criminal investigation that involves a political ally or a political opponent, donor, or your own office? It can get very murky, so how do you maintain that sort of impartiality, especially when you have someone of that caliber [involved]?
MW: Well, the first answer is that generally, if it’s someone where you have a conflict of interest, it’s considered good form to refer it out to a different office. And the attorney general [AG] has the right to transfer cases between the DA’s or into the AG’s office or back out to the DA’s. So if it’s something that’s personally connected to me, my office shouldn’t be investigating. Full stop, no questions asked. In terms of friends or allies or people who are enemies or perceive themselves to be enemies, the short answer is: Everyone gets the same equal justice. No one gets a pass because they’re a friend, and no one gets whacked because they’re an enemy.
HPR: What would you do to reduce wrongful convictions while still holding violent offenders accountable? There have been a lot of people who talk about crime increasing in the Boston area, but then also people who talk about a lot of people being convicted wrongfully. What is the fine line between rehabilitation versus deterrence?
MW: Well, it’s interesting you asked me that because right now I’m mostly a criminal defense lawyer. I sit on the other side of the fence and I’m trying to hop the fence, so to speak. Technology has been one of the most powerful things that has helped us sort it out. You’ve probably seen what the Innocence Project and others have gone through. There’s an error rate, even on death row in other states, of up to 2%, where people have gone all the way through the system, through all the appeals, and they’re still not guilty. So our system isn’t perfect, and we’ve got to remember that.
Technology helps a lot, but some days the science is questionable, or it’s murky. One of the best things to do is to look at the other side and see if, for an average person in a 10-minute conversation, they’ve got a good argument. We actually had a strain of shaken baby syndrome cases that were getting indicted as murder, and it turns out that a lot of them actually were genetic predispositions to weak skulls or things like that, and these prosecutions collapsed.
The short answer is that it’s a good idea to try and listen to the defense or put yourself in their shoes before you bring your case. And you need to be relatively certain in your case before you bring it. Having to present it to a grand jury — an independent body — is helpful, but as you know, even a ham sandwich can get indicted. So you use technology, you use ethical parameters, and you also try to put yourself in the other guy’s shoes. Imagine the defense, the best defense case. And if it’s even close, you need to either find more evidence or reconsider prosecuting.
HPR: What is your view on cash bail, mandatory minimum sentences, juvenile prosecution, and diversion for low-level offenses?
MW: I think if you talk to everyone on both sides of the political fence, everyone will agree that juvenile pretrial diversion is an excellent use of resources. If we educate folks before they mess up their lives or other people’s lives and give people another chance, oftentimes we can save people and stop them from getting into a cycle and becoming a career criminal.
The other stuff you asked about is a little bit more politically dicey. I am a huge believer in the right to bail. I think we use a little bit too much pretrial detention, and I think we drastically need to rewrite the statute. But I will also tell you that I suspect, as every prosecutor would, that we don’t detain enough of the wrong people, and we hold too many of the right people. Generally speaking, cash is not a good substitute for whether or not you should be held. I think the pre-trial detention statute needs to be rewritten. I think it needs to not have a categorical approach. I think it needs to focus almost exclusively on violent crimes [instead of crimes such as a] third-offense DUI, or second-time unauthorized, unlicensed possession of a firearm. Those aren’t really violent crimes. They can be, but they’re not. And so because the courts take a categorical approach to it, I think that’s a grave mistake. I think you need to look at the police report and see if there’s any real violence.
If there’s violence involved, if there are innocent victims, then we need to look at pretrial detention. But if you’re not eligible for pretrial detention, then bail is only to make sure you show up. The GPS does wonders. The new technology, in terms of being able to ring-fence people with their cell phone or anything of the ilk, there are tons of new technologies that we can explore that will help keep us safe without using cash bail as a substitute for pretrial detention, which is definitely not to say I’m against cash bail. I just think it’s one tool in a toolbox, and I think it is the most ham-fisted of the tools.
HPR: What is your view on the constitutionality of flock cameras as a new technology for enforcing crime?
MW: I’m a huge privacy nut. I did my LLM thesis on FISA [Foreign Intelligence Surveillance Act] overreach going back 15 years ago. I’m very much opposed to mass surveillance, but when you talk to policemen, or detectives more particularly, they all say that the flock cameras are an invaluable tool. If there’s a way to safeguard them and protect liberty, I’m for it. But if we can’t find a way to make the flock cameras protect privacy — particularly requiring judicial orders to access them, basically making them like a search warrant — then we have to get rid of them. I would rather not have the tool than give up privacy. We are already way close to George Orwell; we don’t need any help walking over that line into 1984.
HPR: What’s an issue you diverge with your party on?
MW: The Republicans have a reputation nationally of being pro-business and anti-environment. I think that label is undeserved, but they’ve been very hostile to clean water rules. Now, to be fair, I understand the hostility to the Clean Air Act. I think that the Clean Air Act is a poor approach. But I think the Clean Water Rule, under the Clean Water Act, was a brilliant solution to solve a major problem. We all need water. About 20 years ago, the federal Supreme Court basically upended the apple cart on what is and what is not subject to the federal clean water rules in a case called Rapanos [Rapanos v. United States]. Four or five successive administrations have been trying to make a nice, clean, clear rule as to what’s protected and what’s not. President Obama had put one into place, and the first Trump administration undid it with a wave of a wand. And I’ll be the first to tell you that President Obama’s answer to Rapanos was too broad and it was too big. But law favors stability, so more than anything else, sometimes it’s better to have a clear wrong answer than to leave it murky. So I think they were way too quick to throw out the Clean Water Rule, particularly when they didn’t have a good substitute in place.
HPR: What do you admire about your opponent [Attorney General Andrea Campbell]?
MW: In law, we talk about the need for a lawyer to be a zealous advocate. I don’t necessarily agree with what she does, and I think her priority is a little different than mine. But what I can tell you is that she puts her heart into everything she does. She has never failed to mount a full-throated defense for her ideals, she has never failed to attack injustices that she sees, and she has always put her enthusiasm and her energy behind her. To be perfectly honest, I thought she was brilliant on the Boston City Council, and I was kind of surprised to see her shift sideways into what I regard as a non-political office. I am quite positive she’s going to run for governor someday. The debate that she is going to have when she does is going to be one for the ages. It’s going to be spirited, it’s going to be well-informed, and I’m looking forward to seeing that someday.
