With less than a month left in his eight years in office, Montana Attorney General Tim Fox made one of the most controversial decisions of his tenure.
Fox filed a brief encouraging the U.S. Supreme Court to hear the now-dismissed lawsuit of Republican Texas Attorney General Ken Paxton, which alleged officials in Georgia, Michigan, Pennsylvania and Wisconsin made unconstitutional changes to their state election laws under expanded mail-in voting. The states went for Democratic former Vice President Joe Biden. The lawsuit, which cited unproven and unfounded claims of widespread voter fraud, proposed the court appoint a new slate of electors that could swing the election to Republican President Donald Trump.
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The rebuke from the swing states was blistering — Pennsylvania called the lawsuit a “seditious abuse of the judicial process” in its brief to the court and critics characterized it as an affront to states’ rights. The case divided Republicans, with a number of attorneys general including in Wyoming and Idaho, declining to participate. The court ultimately found Texas lacked standing in its decision to decline the case.
Fox told Lee Newspapers that Texas asked important legal questions when he joined 17 other Republican attorneys general in encouraging the court to hear the lawsuit. The filing followed a philosophy Fox has held since his 2012 election as attorney general: that while he holds a partisan position, he pushes hard to make decisions apolitically. It may not have always appeared that way publicly, given some of his more polarizing choices, but he said that has been his goal.
With his final term atop the Montana Department of Justice winding down, the Hardin native sat down for an interview in early December to talk about his time in office. The last eight years have been marked by a number of high-profile legal actions, a public battle with cancer and an unsuccessful gubernatorial bid. Fox lost a primary bid for governor this year and is termed out of office Jan. 4.
It is a job he will miss, Fox said, for the team of attorneys and staff he assembled and the work they were able to do. Along with the attorney general’s office, divisions such as the Motor Vehicle Division, Montana Highway Patrol and Gambling Control fall under DOJ.
“Serving the people of Montana, serving this state, is probably one of the best things about being attorney general for Montana,” he said. “It’s a high honor. It’s also a heavy responsibility sometimes.”
Fox speaks with pride about creation of the Montana Healthcare Foundation. In 2013, the organization was formed in response to the sale of Blue Cross and Blue Shield of Montana and works on expanding access to health care. Fox recalls that of the 51 bills his agency brought forward, he asked Democrats to carry about half of them, and 49 were signed into law by a Democratic governor.
His department expanded substance abuse programs and logged significant victories and settlements with the pharmaceutical industry.
The agency covers the state’s new efforts to address the epidemic of missing and murdered Indigenous people. Growing up on the edge of the Crow Reservation, Native American issues have been particularly important to Fox and he was adopted into the tribe in 2016.
And he has brought lawsuits or filed legal opinions and briefs applauded by and angering many in both parties.
Fox faced another contentious decision in 2019 over whether to weigh in on a Supreme Court lawsuit that could strike down the Affordable Care Act, often called “Obamacare.” He ultimately decided to file a brief along with the state of Ohio, arguing the mandate that individuals must buy insurance is unconstitutional, but the law need not be scrapped entirely. It was a position that many, including in his own party, did not believe went far enough, while supporters of the law criticized any attempt to weaken it.
In another high-profile case, Fox sided with Gov. Steve Bullock, a Democrat, in the minority in an effort to push a state conservation easement through the Land Board after three other Republicans voted to delay action.
When Bullock then claimed the board had no authority and pushed the easement through, Fox wrote an attorney general's opinion countering Bullock and publicly blasted him. The Montana Supreme Court ultimately sided with the governor.
“I can’t say that I made everyone happy, but then again it wasn’t my job,” Fox said of wading into controversy. “It was not a popularity contest. I was just trying to do the right things for the right reasons and I believe we got it right more times than we got it wrong.”
Conservative versus moderate
Fox drew his share of criticism in newspaper opinion pages for supporting the Texas lawsuit, including from many who saw it as running counter to a more moderate track record.
But when it comes to politics, Fox takes issue with the moderate tag and believes it does not reflect his conservative viewpoints.
“I think those that call me a moderate will typically base that on things like asking Democrats to carry legislation through the Legislature and some pragmatic decisions, but I’m a pretty conservative guy,” he said. “I’m a fiscally conservative guy, I’m a socially conservative guy. But I would say it’s probably more true for the attorney general office than most elected offices that are partisan that there is an opportunity, if not an expectation, that the officeholder should be very pragmatic and nonpartisan to the extent possible.”
Fox has concerns about how divisive rhetoric polarizes the state and the country. When it comes to his own online presence and public statements, he asks whether the message is uplifting or educates and if it instills confidence in him as a decision-maker.
“I think the advent of social media and instant news has been one of the issues that our elected officials have not figured out how to deal with in a good way,” he said. “It’s become much more easy to say something and get it out there and to personally attack others because even if it’s your Twitter page or your Facebook page, there’s still a sense of detachment if not anonymity.”
Fox’s record and years in the public’s eye led him to be considered a top candidate for other elected offices.
He met with national Republicans going into Montana’s 2018 race for U.S. Senate, but it was the 2020 campaign for governor that he set his eyes on. He would face U.S. Rep. Greg Gianforte, who many political analysts saw as a more conservative choice, and state Sen. Al Olszewski, among the legislature’s most conservative members, in the GOP primary. Gianforte, who had run multiple statewide races in the previous three years, would go on to easily win both the primary and general elections to become governor-elect in a year when Republicans ran to resounding victories.
The primary result had some political analysts theorizing Republican voters shifted right with Trump leading the party, and that Fox's brand of pragmatism became a weakness. Others theorized Gianforte's previous multiple runs for statewide office gave him a significant advantage in name recognition and fundraising, in addition to being able to self-fund a portion of his campaign.
Still, Fox’s belief in the importance of bipartisanship means he is happy with the moderate moniker if it reflects his ability to get things accomplished, and do it in a spirit of statesmanship.
“It underscores, I think, the idea that there’s more we can all agree on than we could ever disagree on if we just took time to build relationships and visit and speak with one another and be respectful and be civil,” he said of asking Democrats to carry so many of his agency’s bills.
When Fox was elected president of the National Association of Attorneys General last year, he decided his presidential initiative would be transformational leadership and civility. The theme built off of his thesis as a master’s student at the University of Montana as he worked toward a degree in public administration.
Focusing on bipartisanship and building relationships across the political spectrum was once something asked of all leaders, but all too often not seen enough in recent years, he said. But at a time in the country where politics has become historically divisive, he even saw the divide straining the nation’s and U.S. territories’ top law enforcement officials.
“States’ attorneys general had traditionally and historically worked together in a lot of different avenues for more than a hundred years and got a lot accomplished,” Fox said. “The political divide was starting to hurt relationships in the attorneys general world, so I resolved when I was elected president I wanted to build a roadmap to lead not only the current but the future attorneys general toward working together and being civil with one another.”
Fox received the association’s Kelley-Wyman Memorial Award this year in recognition of his work — the first Montanan to receive the group’s top honor.
It was during a routine colonoscopy in 2018 that Fox discovered he had colon cancer. Not only did he face a private health crisis, but he faced the decision of whether to make the diagnosis public.
“There’s nothing like a health crisis to make a person reassess what’s important in life,” he said.
Some people close to Fox told him that going public could harm his ability to seek another office, but as he learned more about the disease and the importance of screenings, he realized the chance to raise awareness.
“It was a simple health screening that some people find distasteful or uncomfortable that essentially saved my life. Health care professionals saved my life,” he said. “I felt like this was an opportunity for me to go public and say ‘Listen, talk to your doctor and get a plan.’”
Fox’s treatment led to a cancer-free diagnosis later that year and he has continued to have positive health tests. He has also heard from four people who had colonoscopies after his public battle, three of which were also diagnosed with cancer and another who had surgery to remove a polyp.
“That’s a pretty impactful thing,” he said.
The attorney general is often characterized as the state’s top law enforcement official, and during Fox’s time in office, he has received the distressing news that a law enforcement officer has been injured or killed in the line of duty. He has sat with grieving families at funerals and visited survivors as they recover.
Recalling Trooper Wade Palmer, who was seriously injured when a suspect shot him near Missoula, what has perhaps touched Fox the most is the outpouring of support Montanans and others displayed.
“I think that underscores the importance of those jobs that our first responders have and the people in the justice system, but certainly the dangers and the challenges that they face,” he said. “I think we’re fortunate in Montana that we hold our first responders, particularly our law enforcement officers, in high regard, but we should never take them for granted.”
When asked what he plans to do in January as his term expires, Fox said that while he remains a sitting attorney general, his conversations have been limited to high-level conceptual discussions, and he has no formal plans in place.
“It’ll be a lifetime of memories for me packed into those eight years of great people, the great work that they do, the opportunities that we had and the fun times that we had too, because it wasn’t all work,” he said. “I just want to thank Montanans for the opportunity to serve.”