There’s no doubt that California Attorney General Xavier Becerra is a staunch pro-choice Democrat, but the question is whether he’s too close to Planned Parenthood to prosecute undercover pro-life investigators David Daleiden and Sandra Merritt.
Their effort to force Mr. Becerra to recuse himself received a boost Friday when the California Supreme Court ordered the suspension a preliminary hearing scheduled for Monday to consider their petition accusing him and his predecessor, Sen. Kamala D. Harris, of being motivated by political bias.
“From Kamala Harris to Xavier Becerra, both of them have been very much embedded with Planned Parenthood,” said Mat Staver, founder and chairman of the Liberty Counsel, which represents Ms. Merritt.
Neither Mr. Becerra nor Ms. Harris has made any secret of their Planned Parenthood support. The organization has given thousands in campaign donations to the Democrats, hosting his primary election party and working with her office on a 2016 bill to crack down on hidden-camera probes against health-care providers, including Planned Parenthood.
“Not only have they received financial contributions, but the attorney general spoke at an event before the prosecution began with a sign behind him that said, ‘I stand behind Planned Parenthood,’ ” Mr. Staver said. “This is the highest law-enforcement office in the state of California, and we don’t feel like with that kind of open bias that we can get a fair trial.”
The issue arises with both Democratic and Republican attorneys general already immersed in the political fray as they position themselves as foils to White House policy, both under President Barack Obama and President Trump.
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Such policy disagreements are increasingly common, but what’s rare is the allegation that a state attorney general has engaged in selective prosecution of individuals based on their politics.
“Certainly politics has a certain role — these are elected officials — but their job is to make independent, unprejudiced judgments about what the law requires of all citizens, no matter what their point of view,” said Tom Brejcha, president and chief counsel of the Thomas More Society, which represents Mr. Daleiden.
Both Mr. Daleiden and Ms. Merritt have been charged with 15 felony counts of non-consensual eavesdropping and conspiracy for secretly recording Planned Parenthood representatives at a conference in San Francisco as part of their 2015 investigation into abortion providers and fetal-tissue sales.
A former congressman, Mr. Becerra filed the charges in May 2017 after being elected California attorney general in November. He succeeded Ms. Harris, who began the investigation into the pro-lifers before winning her 2016 race for the U.S. Senate.
“The right to privacy is a cornerstone of California’s Constitution, and a right that is foundational in a free democratic society,” Mr. Becerra said in a 2017 statement. “We will not tolerate the criminal recording of confidential conversations.”
Mr. Becerra did not respond immediately to a request for comment. So far his office has been successful in disputing the bias argument, which has been rebuffed by state Superior Court Judge Christopher Hite and the California Court of Appeals.
SEE ALSO: David Daleiden, Sandra Merritt fight charges over Planned Parenthood secret videos
That was before California Supreme Court Chief Justice Tani G. Cantil-Sakauye ordered the lower court to suspend the proceedings, a last-minute ruling that Mr. Brejcha called “highly unusual.”
“It does suggest that she takes seriously the questions that were raised,” Mr. Brejcha said. “And that is that this was a politically biased, selective prosecution, based on who the defendants are, rather than strictly what they did.”
Defense attorneys argued that Mr. Becerra has “publicly and consistently demonstrated his loyalty to Planned Parenthood” by, for example, blasting in 2016 the “witch hunt against Planned Parenthood” and referred to the investigators as “culprits.”
Planned Parenthood also sought to join the prosecution team as a party under Marsy’s Law, the state’s victims-rights statute, a bid that was nixed by Judge Hite earlier this year.
“It was a very unusual request, and you would think that any prosecutor oppose that because this was the jurisdiction of the state, but the California attorney general did not. He welcomed their presence,” Mr. Staver said.
Planned Parenthood had cited concerns about defense questioning that could expose the identity of its employees and jeopardize their safety. Judge Hite did order the names of 14 Planned Parenthood workers and others to remain sealed.
Would it make any difference if Mr. Becerra’s deputies took over? “I think his whole office has been tainted by their involvement,” Mr. Staver said.
“Even the unusual raiding of David Daleiden’s home when Kamala Harris was attorney general, which happened after they spoke to Planned Parenthood,” he said. “The entire process from beginning to end has been tainted.”
Mr. Becerra has a history of demanding that government officials recuse themselves from proceedings. Last year, he and 17 other Democratic prosecutors called on then-Acting Attorney General Matthew Whitaker to recuse himself from special counsel Robert Mueller’s investigation.
In January, Mr. Becerra joined 10 attorneys general in demanding that Bernard McNamee, a Federal Energy Regulatory Commission member, recuse himself from a power-system decision over his previous lobbying on behalf of electric and natural-gas utilities.
The defense has also argued that California state prosecutors have revealed their bias by pressing charges against Mr. Daleiden and Ms. Merritt but not hidden-camera expose videos by news outlets.
“I think it’s clear that they have gotten unfair treatment compared to others throughout the history of California, and it’s because of their relationship and advocacy of Planned Parenthood,” Mr. Staver said.
The defense is seeking to replace Mr. Becerra with a special prosecutor or, barring that, hold an evidentiary hearing into the bias question regarding Mr. Daleiden and Ms. Merritt.
“At the very least, the Attorney General should step aside and allow an unbiased prosecutor to decide whether this prosecution should go forward,” said Mr. Brejcha in a statement. “But based on evidence of bias already adduced, the case should be dismissed.”
In 2016, Houston prosecutors dropped all criminal charges against Mr. Daleiden and Ms. Merritt stemming from their use of fake driver’s licenses and a phony business in their investigation of Planned Parenthood Gulf Coast.