Stephen Miller, the notorious advisor to former president Donald Trump, suggested on X yesterday that a "conservative state Attorney[] General" should pursue civil and criminal charges against Media Matters. Miller claims that Media Matters committed "fraud" by reporting that X was displaying ads from major brands next to white nationalist and neo-Nazi posts. X has accused Media Matters of "completely misrepresent[ing] the real user experience on X." But, according to X's own statement, all Media Matters did was create an account, follow some users, and observe what ads were displayed. 

Musk, a self-described "free speech absolutist," responded favorably to Miller's proposal to subject journalists to criminal prosecution, declaring it "interesting." But the idea that Media Matters' conduct is legally actionable is absurd, especially since X has already admitted that ads were displayed next to the posts identified by Media Matters.  

Nevertheless, Missouri Attorney General Andrew Bailey (R) took Miller up on his suggestion. "My team is looking into this matter," Bailey posted in response to Musk. 

Bailey expanded on his investigation of Media Matters' reporting in an interview on Newsmax, a far-right cable channel: 

The Missouri Attorney General's Office is tasked in statute with protecting Missouri consumers. That means consumers that participate on social media platforms as well. And so if we have an instance where there was a deceptive or fraudulent business practice where Media Matters was using some sort of coercive or fraudulent algorithms or advertising, that's going to be problematic on the Missouri Merchandising Practices Act. 

It does not appear that Bailey gave this "investigation" much thought. Media Matters’ conduct did not involve "fraudulent algorithms" or "advertising." And the Missouri Merchandising Practices Act only applies to "the sale or advertisement of any merchandise in trade or commerce." Media Matters was not selling anything. 

But Bailey's announcement should not come as a surprise. Bailey has never been elected by the people of Missouri. He was appointed to his position in January by Missouri Governor Mike Parson (R). Since then, Bailey has brazenly exceeded the legal authority of his office to grab headlines. Bailey is running for a full term in 2024 and is seeking to make sure he is not outflanked from the right in the Republican primary. 

Bailey circumvents legislature, announces "emergency" rule on trans medical care

In March 2023, Bailey announced that he was unilaterally implementing emergency regulations that would impose severe restrictions on transgender hormone therapy for children and adults. What authority did Bailey cite to justify circumventing the legislature? The Missouri Merchandising Practices Act. Bailey's actions were condemned by Democrats and Republicans. 

Bailey proposed requiring 15 hourly therapy sessions over 18 months before any person could receive hormone therapy. Doctors would also need to certify that "for at least the 3 most recent consecutive years, the patient has exhibited a medically documented, long-lasting, persistent and intense pattern of gender dysphoria" and "any existing mental health comorbidities of the patient have been treated and resolved." Further, doctors would need to have in place a system to monitor "all patients beginning the first day of intervention and continuing for a period of not fewer than 15 years." 

Bailey claimed he had the authority to issue these rules — the first in the country limiting hormone therapy for adults — because "gender transition interventions are experimental and have significant side effects." But hormone therapy and other gender-affirming treatments are not experimental. They have existed for decades and are supported as medically necessary by the American Medical Association, the American College of Physicians, the American Academy of Pediatrics and the American Psychiatric Association. 

Prominent Missouri Republicans harshly criticized Bailey's efforts. Missouri Secretary of State Jay Ashcroft (R) blasted Bailey for exceeding his authority. "If you're an adult, you have the capacity to make your own decisions," Ashcroft said. "I don't believe it's the role of [the] government to forbid it."

Trans advocates sued to block Bailey's rule, and it was temporarily blocked by a state judge. In May, the Missouri legislature then passed a bill banning gender-affirming care for minors. Shortly thereafter, facing increasing criticism from all sides, Bailey withdrew the rule. 

Bailey claimed protecting reproductive rights in Missouri would cost taxpayers $50 billion 

Reproductive rights supporters are seeking to put the Missouri Right to Reproductive Freedom Amendment on the state ballot in 2024. (Missouri banned most abortions after the Supreme Court overturned Roe). The amendment would enshrine "the right to make and carry out decisions about all matters relating to reproductive health care," including abortion, in the Missouri Constitution. Reasonable restrictions on abortions after "fetal viability" would be permitted. 

Bailey's role in this matter is very limited. Before the organizers can collect signatures, Bailey must certify that "the proposed ballot language isn't more than 50 words, and that it includes the auditor's cost estimate." Missouri State Auditor Scott Fitzpatrick (R), an abortion opponent, estimated that the amendment would cost the state about $51,000 annually. 

"Even though I would prefer to be able to say these initiative petitions will cost the state billions of dollars, I have a responsibility to the people of Missouri to not allow my personal beliefs to prevent the Auditor’s office from providing a fair cost estimate based on facts," Fitzpatrick said. 

Bailey, however, refused to certify the amendment because he claimed the real cost was not $51,000, but over $50 billion. According to Bailey, if the state protected abortion rights, it would lose $12.5 billion in Medicaid funding. (This is not true.) Bailey also claimed that the amendment would "cost the state billions more in lost revenue because future taxpayers wouldn't be born." A state judge rejected both of those arguments. 

Undeterred, Bailey then claimed the cost of another proposed constitutional amendment protecting reproductive rights was $21 million. Bailey said that, as an opponent of abortion rights, he could not in good conscience defend the amendment as Missouri's Attorney General. Therefore, he would have to hire outside counsel to do his job. Those lawyers, Bailey claimed, would cost $21 million annually. That figure was included in the descriptions of the amendment for voters drafted by Secretary of State Ashcroft.

Bailey's unprecedented effort to overturn a manslaughter conviction

Earlier this summer, Bailey asked a judge to throw out the conviction of a white police officer who killed a 26-year-old Black man outside his home in 2019. The former detective, Eric DeValkenaere, was found guilty of “second-degree manslaughter and armed criminal action” in the death of Cameron Lamb. DeValkenaere claimed that he fired his gun after Lamb pointed a gun at his partner, Troy Schwalm. But a judge rejected this defense, arguing that the officers “had no probable cause to believe [Lamb] had committed a crime, had no warrant for Lamb’s arrest and had no search warrant or consent to be on the property,” the AP reported. Prosecutors also claimed that the officers planted a gun on Lamb after the shooting.

Bailey, however, insists the conviction was based on insufficient evidence. “DeValkenaere’s use of force was reasonable in light of Mr. Lamb’s use of deadly force against Schwalm, and the court erred as a matter of fact and law in determining that Schwalm and DeValkenaere were the initial aggressors,” Bailey’s office argued. 

But experts say that Bailey’s move is unusual. As the Kansas City Star wrote, the state’s Attorney General office “has historically fought to defend convictions.” Jean Peters Baker, the prosecutor whose office secured the conviction, called the reversal “unprecedented” and “disappointing.”

“I’ve been doing this work for 40 years. And I can just say, I’ve not been involved — in the scores and scores and scores of murder cases I’ve tried — where the attorney general came in and filed a brief seeking to reverse a conviction I obtained,” Tim Dollar, a private attorney who assisted with the prosecution, said. 

In October, a three-judge panel rejected Bailey's position and "ruled unanimously that there had been enough evidence" for a conviction. DeValkenaere began serving his six-year sentence that month after spending two years free on bond while his appeal was pending.