Missouri AG Andy Bailey Face Plants All Over Federal Docket In Media Matters Case

Are you there, Elon? It's me, Andy.

There aren’t a lot of lawyers who can make Texas Attorney General Ken Paxton look like a man of discretion and judgment, but Missouri Attorney General Andy Bailey is up to the job.

The two Republican politicians are currently harassing the non-profit Media Matters for America (MMFA) for the dastardly crime of being mean to Elon Musk. But where Paxton appears to understand that none of this shit is real, Bailey is going pedal the metal in a vain effort to make the media outlet respect my authoritah!

Started … Going

In November of 2023, Elon Musk promised to file a thermonuclear lawsuit against MMFA for publishing screenshots of ads from major brands running on Ex-Twitter next to explicitly pro-Nazi content. Trump’s wet gremlin Stephen Miller demanded that Republican AGs ride to the rescue, and reply guys Paxton and Bailey were there to answer the call.

In November, Paxton issued an investigative subpoena suggesting that MMFA had violated Texas’s Deceptive Trade Practices Act by soliciting donors under false pretenses. MMFA sued in DC federal court to block it, securing an injunction in April from Judge Amit Mehta. Paxton appealed before wandering off to harass some more trans kids and women with life-threatening pregnancies — he knows better than to put all his eggs in one evil basket. Paxton and MMFA agreed to stay discovery until the conclusion of the appeal, and everyone went on about their business.

Unlike Paxton, Bailey has zero chill, so he came up with a different plan. He issued his own investigative subpoena, but the very same day he filed it, he also filed a state enforcement action asking the Circuit Court for Cole County, Missouri to find MMFA out of compliance. The theory was that his subpoena was “virtually identical” to Paxton’s and, since MMFA was likely to assert constitutional claims in DC, that amounted to constructive defiance of a subpoena they hadn’t even been served with yet. (That is not a thing.)

MMFA responded by adding Bailey as a defendant in DC and asking Judge Mehta to enjoin the subpoena which was, by Bailey’s own admission, “virtually identical.” In a belated attempt to differentiate his case from Paxton’s, Bailey then raced back to state court to amend his complaint by adding a demand for a $1,000 fine for MMFA’s supposed failure to timely comply. See? Completely different!

In August, Judge Mehta enjoined the Bailey subpoena, and, like Paxton, Bailey appealed. But unlike Paxton, Bailey could not simply calm down and let the process play out. He’d worked himself into a lather on a bunch of conservative podcasts and news hits bragging about takin’ it to those evil libruls, and he wasn’t going to let some federal judge boss him around.

For Every Dumbshit Action, There Is an Equal and Opposite Dumbshit Reaction

When Judge Mehta enjoined Bailey’s subpoena, it meant that the AG could not prosecute his case in Cole County. The normal and appropriate thing to do would have been to agree to stay the state case. But nobody ever called Andy Bailey “normal” or “appropriate,” so instead he filed a Notice of Federal Court Injunction complaining to Judge John Bloodworth (who finally got specially assigned to the Missouri case after a bunch of local judges spent five months recusing themselves from this turd) that “in an extraordinary, unreasoned order, a judge in D.C. purported to enjoin the Attorney General from ‘prosecuting’ this case in state court.”

“The Attorney General is thus involuntarily unable to file motions in this Court seeking to prosecute the case,” Bailey went on, adding slyly (or so he thought) that “The D.C. judge’s order, however, does not purport to prohibit this Court from enforcing Missouri court rules and deadlines, which this Court can enforce sua sponte.”

This was an unsubtle request for the the state court to defy Judge Mehta’s injunction and force MMFA to comply with the subpoena. But Judge Bloodworth (who has been practicing law since 1980 and presumably has no patience for this nonsense) promptly stayed the case “until such time as the Injunction is dissolved, dismissed or otherwise concluded.”

Bailey, who had refused to negotiate a stay of the state case for unspecified “reasons,” then turned around and filed a motion to stay discovery in the federal case, feigning indignation that MMFA would not agree to a mutual ceasefire as the organization had done with Paxton.

“Given Plaintiffs’ mirrored claims against Defendants Bailey and Paxton, there is little equity in continuing to discovery against one defendant while another similarly situated defendant has the benefit of a stay pending appeal,” he whined, seamlessly pivoting back to claiming that he and Paxton were in exactly the same posture.

MMFA did not waste the advantage in its response this week, quoting liberally from Bailey’s filings in Missouri and highlighting the hypocrisy of his demands.

“Bailey’s own counsel previously told the Court that there ‘are several differences between this case and the Paxton matter,’” they tut-tutted, noting that the AG’s wildly aggressive litigation strategy puts him in a different position from Paxton, who appealed based on his claim that the DC court lacked personal jurisdiction over him, effectively conceding the underlying facts of the case. Bailey opted instead to claim in both state and federal court that he has evidence of fraud by MMFA, and he vociferously denied that he retaliated against MMFA or coordinated with Musk and/or Paxton.

“Plaintiffs are entitled to test these incendiary allegations in discovery requests of their own,” MMFA pressed, adding that “Such a stay would reward Bailey’s intransigence while prejudicing Plaintiffs by delaying their chance to obtain full and final relief.”

MMFA also note that Bailey’s filings are “carefully worded to neither confirm nor deny that he coordinated with Paxton.”

If true, that would be the first careful thing he’s done in this case. This is a guy who went on Don Jr’s podcast and, when asked what was the “endpoint” of his investigation, said, “This is absolutely a new front in the fight for the war for free speech. This investigation is really critical and again especially as we move into an election cycle in 2024.”

“Defendant Bailey expressly tied the investigation to the upcoming election,” Judge Mehta wrote incredulously when he denied Bailey’s motion to dismiss, noting that “A reasonable factfinder is likely to interpret Defendants’ words as targeting Media Matters not for legitimate law enforcement purposes but instead for its protected First Amendment activities.”

Whether Bailey gets his stay is still up in the air. He’s entitled to a reply before Judge Mehta rules on the request, although, considering the AG’s conduct thus far, he may seize this as yet another opportunity to step on his own dangly bits. Because despite all the bluster — or more accurately because of it — Bailey is really, really bad at this.

The First Rule of Performative Litigation Is Don’t Go On Air and Admit You’re Doing Performative Litigation

The second rule is don’t mistake performative litigation for the real deal.

The third rule is that you always have at least a dozen performative legal actions going at once so that no one notices when one of them crashes and burns.

Ken Paxton is a master at this game. He announces all kinds of enforcement actions against his enemies with great fanfare. He fires off aggressive investigative demands. As often as not, it all comes to nothing, but no one notices because he’s constantly generating headlines for doing some new, evil thing.

Meanwhile Bailey has tied himself in knots, making things so much worse for himself and potentially for Paxton, too. Because if MMFA does convince Judge Mehta to let it start discovery now, they’ll be asking all kinds of questions about Bailey’s communications with Paxton and Elon Musk. And the fact that Paxton was wily enough to STFU and prosecute this case in wholly desultory fashion won’t matter.

Well, played, Bailey. Elon must be proud. (Just kidding, he’s already forgotten you exist.)