He worked under Schmidt and Trump. But effort to overturn 2020 election was a breaking point

A former federal prosecutor appointed by President Donald Trump is backing Kansas Democratic Gov. Laura Kelly over her Republican opponent, state Attorney General Derek Schmidt, citing Schmidt’s support of a lawsuit that attempted to overturn Trump’s 2020 election loss.

Stephen McAllister served as Kansas solicitor general for more than a decade, including seven years under Schmidt, before Trump appointed him the U.S. Attorney for the District of Kansas, the top federal prosecutor in the state. But McAllister says he won’t work for Schmidt again.

The key turning point for McAllister, now a law professor at the University of Kansas, came in the weeks after the 2020 presidential election, when Schmidt endorsed a Texas-led lawsuit that sought to overturn the results in four swing states that went for President Joe Biden.

“At the point which he joined Texas and others in that challenge to the 2020 election was the point I just knew that once I was done being U.S. attorney, I was not going to be able to go back and do work for him in that office,” McAllister told The Star in an interview.

“I just, in good conscience, didn’t feel like I could.”

McAllister breaking with his former boss underscores how Trump’s attempts to cling to power after he lost the 2020 election was a red line for some Republicans — even as many others remain loyal to Trump. Kelly hasn’t made Schmidt’s support of the Texas lawsuit a major campaign issue, as both candidates instead have sought the advantage on other issues including the economy and jobs.

Still, Trump continues to spout baseless claims of election fraud about the 2020 election. On Monday, Trump, who remains massively influential among Republicans, called for either his reinstatement as president or for the election to be declared “irreparably compromised” and a new election held. No path exists for either.

McAllister spent much of the Trump administration working for the U.S. Department of Justice. Trump nominated McAllister in September 2017 to be a U.S. attorney — a selection widely praised at the time, including by Schmidt, who said he had appreciated McAllister’s “wise counsel” on complex legal issues. He was confirmed by the U.S. Senate on a voice vote.

McAllister said he had serious concerns about Trump for a long time, but nevertheless decided to seek the nomination.

“Part of the reason I sought the appointment, quite frankly, was because I was concerned about the type of person he would appoint and I wanted my beloved Kansas to be OK during that time,” McAllister said.

But McAllister’s concerns “came home to roost” on Jan. 6, 2021, he said. On that day, a mob of Trump supporters stormed the U.S. Capitol after Trump whipped up the crowd at a rally near the White House. The riot, which resulted in injuries to more than 100 police officers, delayed Congress’ formal counting of Biden’s Electoral College victory.

McAllister recalled growing upset as he watched a live-stream of the attack. He took the presidential commission bearing Trump’s signature appointing him a U.S. attorney off the wall in his office and put it behind a piece of furniture facing the wall.

“And I proceeded to draft a message to the entire office about how troubling the events were,” McAllister said.

McAllister said he did not consider resigning in the wake of Jan. 6, but would have done so if he had been asked to aid Trump’s challenge of the election results. McAllister stepped down in February 2021 after the Biden administration requested the resignations of all presidentially-appointed U.S. attorneys, as is typical during new administrations.

The riot came after weeks of Trump denying the outcome, as well as an attempt by a host of Republican attorneys general and Trump allies to overturn election results through lawsuits.

It’s not clear how much support, if any, Schmidt will lose among moderate Republicans and independents over the Texas lawsuit. But McAllister’s stance suggests the Kansas attorney general’s actions in late 2020 may continue to be a cause for concern among at least some portion of voters otherwise inclined to support Republicans.

“The fact that Derek and others helped promote Trump’s craziness is pretty hard to forgive and very hard to forget,” McAllister said.

McAllister, 59, in addition to working as a law professor, this spring was part of a team of attorneys that included lawyers from the American Civil Liberties Union who unsuccessfully challenged Kansas’ new congressional map, alleging it was a gerrymander that violated the state constitution. Schmidt’s office defended the map in court.

In May, the Kansas Supreme Court issued a decision upholding the map’s constitutionality. Schmidt’s office defended the constitutionality of the map, arguing the courts had no authority under the Kansas Constitution to review it for political gerrymandering.

Schmidt campaign manager C.J. Grover said Schmidt likes McAllister and “wishes him all the best with his newly adopted circle of liberal friends.”

“It comes as no particular surprise that a trial lawyer who is now paid by the ACLU, and just lost at the Kansas Supreme Court against Derek Schmidt and the legal team at the Attorney General’s Office, is supporting a Democrat,” Grover said in a statement.

Clerked for Clarence Thomas

McAllister, a Republican, has served under both Republican and Democratic state attorneys general and was state solicitor general from 2007 to 2018. He has also been the dean of the University of Kansas School of Law and clerked for U.S. Supreme Court Justice Clarence Thomas, one of the court’s most conservative members, and the late Justice Byron White, who was nominated by President John F. Kennedy.

“Steve’s reputation in the Kansas legal community is unquestioned,” said Mark Johnson, an attorney at Dentons in Kansas City and a colleague of McAllister, who is also an attorney at the firm.

Johnson said it would be “short-sighted” to criticize a lawyer for the Kansas Supreme Court’s decision in the redistricting case.

While McAllister said Schmidt over time began supporting lawsuits where he legally didn’t see the argument, the Texas lawsuit over the 2020 election was an inflection point after which McAllister decided he wouldn’t work for him in the future. Schmidt took on what McAllister called a “Trumpian” persona.

Trump is still under investigation for his actions leading up to the Capitol riot. In Georgia, Fulton County District Attorney Fani Willis has been using a special grand jury to investigate whether Trump and others illegally interfered with the state’s election in 2020. The U.S. Department of Justice is also investigating Trump’s actions in its Jan. 6 criminal probe, The Washington Post reported in July.

More than a year and a half later, McAllister remains a registered Republican. But he plans to vote for Kelly, as well as Democrat Chris Mann, who is running against Republican Kris Kobach, the former Kansas secretary of state, in the state attorney general’s race.

“Down deep, I think Derek Schmidt is a really good guy but the game he’s playing I think may not make him the best candidate and that’s unfortunate,” McAllister said.

“The moderate Derek Schmidt I knew I would probably vote for in a heartbeat.”