Taking a look at Cylvia Hayes' lawsuit against the Oregonian

Former Oregon First Lady Cylvia Hayes filed a lawsuit against the Oregonian on Wednesday, seeking to block access to her emails stored on her computer, after the newspaper made a public records request a month earlier. Let's take a look at the complaint.

First, it seeks a "declaratory judgment" that (1) she is neither a public body nor a public official; (2) compelling her to produce her emails would be an unreasonable violation of her privacy; (3) compelling her to produce her emails would violate her right against self-incrimination; (4) if required to produce the emails, she should have "reasonable time" to respond and she should be able to recover fees for the cost involved.

Like a regular lawsuit, a declaratory judgment settles a legal issue between parties. ORS 28.010 states:

Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment is prayed for. The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a judgment.

A party who would normally be the defendant in a lawsuit might seek a declaratory judgment as a way to get a jump on the other side. For example, if there were a potential contract dispute between parties to the contract, one side might want to get a court ruling that the contract is invalid without breaching the contract and then raising the invalidity as a defense - after all, if you lose that lawsuit, you are then on the hook for breach of contract. With a declaratory judgment, you could find out if you are correct that the contract is invalid; if you're wrong, you can still comply with it and not be in breach.

So in this instance, Hayes is basically asking the court to determine that she doesn't have to turn over the emails, as opposed to her refusing to turn over the emails and then defending her failure to do so later on in court. It's primarily a matter of timing.*

* Sometimes there is a question of whether a complaint seeking declaratory relief is sufficiently "ripe," meaning, ready to be resolved by a court. Generally, this problem arises when the dispute is too abstract or uncertain. In this instance, however, Hayes' status as a public official or private citizen seems concrete enough, especially given the Attorney General's earlier ruling that she indeed was a public official.

Second, Hayes argues that she is neither a public body nor a public official, and hence her emails are not public records within the meaning of the public access statute. Here, she seems to rely on the points she earlier raised unsuccessfully before the Attorney General - that her role was "largely advisory or ceremonial," that she lacked "actual or apparent authority to make binding decisions for the State of Oregon," that she was not paid, that she was not supervised by anyone (though that seems to have been part of the problem!), that she was neither an employee nor an officer of the State, nor elected nor appointed to any position. The Attorney General's order is quite detailed and thorough, and addressed Hayes' points (though of course, a court might view the relevant precedents differently).

Third, Hayes' claim of the Fifth Amendment privilege against self-incrimination has drawn a lot of media headlines. (Oregonian; Portland Business Journal; Daily Astorian) The Fifth Amendment protects a person from being forced to testify about matters that might tend to incriminate him or her. To the extent that the compelled disclosure of Hayes emails might incriminate her, the self-incrimination problem isn't about the emails, which speak for themselves, but rather, the act of producing those emails.

Hayes' complaint cites United States v. Hubbell, which provides a good discussion of the problem. Hubbell was investigated by the Office of the Independent Counsel as part of the Whitewater matter during the Clinton Administration. Following his conviction pursuant to a plea deal where he agreed to cooperate, the OIC served a subpoena to get access to documents to check the veracity of Hubbell's cooperation. Hubbell refused to do so, claiming his Fifth Amendment privilege. The Supreme Court explained:

More relevant to this case is the settled proposition that a person may be required to produce specific documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not “compelled” within the meaning of the privilege. Our decision in Fisher v. United States, 425 U.S. 391 (1976), dealt with summonses issued by the Internal Revenue Service (IRS) seeking working papers used in the preparation of tax returns. Because the papers had been voluntarily prepared prior to the issuance of the summonses, they could not be “said to contain compelled testimonial evidence, either of the taxpayers or of anyone else.” [snip] It is clear, therefore, that respondent Hubbell could not avoid compliance with the subpoena served on him merely because the demanded documents contained incriminating evidence, whether written by others or voluntarily prepared by himself.

On the other hand, we have also made it clear that the act of producing documents in response to a subpoena may have a compelled testimonial aspect. We have held that “the act of production” itself may implicitly communicate “statements of fact.” By “producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and were authentic.” Moreover, as was true in this case, when the custodian of documents responds to a subpoena, he may be compelled to take the witness stand and answer questions designed to determine whether he has produced everything demanded by the subpoena. The answers to those questions, as well as the act of production itself, may certainly communicate information about the existence, custody, and authenticity of the documents. Whether the constitutional privilege protects the answers to such questions, or protects the act of production itself, is a question that is distinct from the question whether the unprotected contents of the documents themselves are incriminating.

What this means is that by responding to the Attorney General's order and turning over the emails, Hayes would be implicitly conceding that (1) these are her emails; and (2) they fall within the scope of the public records request. Those concessions would be important if the matter were to proceed to trial, because the emails could be entered into evidence without any further need for authentication (which basically means, a showing that they are real).

One way to see the significance of this concession is to imagine if, say, the FBI had obtained the same emails through a search warrant. Not only would law enforcement have to figure out which of her emails were responsive (as opposed to making her do the work), but now in a trial, the prosecution would have to figure out some way to authenticate the emails. Perhaps it would be enough to show that they were taken from Hayes' personal computer, but there would have to be some way to show that the email was hers. (This might not be that difficult here, in that people who received emails from Hayes could presumably testify that they recognize her email address.)

If the Fifth Amendment privilege applies, does that mean that the emails can't be obtained? I'd guess that for the vast majority of responsive emails, the answer is no, because they were sent to someone else whom the media can obtain them from. However, I suppose there might be some that might be responsive between Hayes and ex-Governor Kitzhaber (e.g., hypothetically discussing how she would or would not act with regard to Oregon business), and if each raised the Fifth Amendment act of production issue, both sender and recipient would be blocking public access.

That would leave immunity as the other option. There are three kinds of immunity: transaction, use, and derivative use. Transactional immunity is the gold standard; having transactional immunity means that the person can't be prosecuted for the subject matter of the immunity. Use immunity means that the specific testimony being compelled can't be used as evidence against the person, but the government can still bring charges using evidence it gets elsewhere. Derivative use immunity means the government can't use not just the specific testimony being compelled, but also any evidence that it discovers as a result of what it learned from the compelled testimony. In other words, say that a person receives use immunity and then is compelled to testify about a crime, during which the person admits to burying the murder weapon in a particular location. The person's confession is protected by use immunity, while the murder weapon is protected by derivative use immunity (unless the government can show it would have found the weapon anyway). The Fifth Amdnment doesn't require transactional immunity, but it does require use AND derivative use immunity as an alternative to the privilege itself, according to Kastigar v. United States.

This brings us back to Hubbell. The typical Kastigar situation (i.e., use and derivative use immunity) occurs when a person is compelled to testify; it's not generally about the act of production. Hubbell, by contrast, was. So Hubbell is a much closer analogue to Hayes' claimed defense. Hubbell received immunity for the act of production, and in his subsequent prosecution, the OIC indeed honored the immunity by not using the act of production to authenticate any documents compelled via subpoena. As the Supreme Court put it, the OIC took the position that it was as if the documents had magically appeared in the grand jury room.

Hubbell ruled, however, that the use of the compelled documents to find other sources of evidence was indeed a derivative use, and critically, that it was not enough that the OIC refrained from using the act of production itself. The problem - and here, I should note that Hubbell is far from a straightfoward case - seems to have been that the subpoena directed against Hubbell was so broad that it required him to use his own thinking against himself in deciding what was covered by the subpoena. Indeed, although the OIC was not even thinking about tax fraud at the time it issued the subpoena, that is one of the charges that it indicted Hubbell on after receiving the documents and studying them. Hubbell stands as a warning, therefore, that with a very broad subpoena, derivative use immunity might cast a long shadow.

As the FBI investigation mounts, beware section 1001 . . . .

Sprinter Marion Jones

Corporate executive Martha Stewart

Movie director John McTiernan

What do sprinter Marion Jones-Thompson, corporate executive Martha Stewart, movie director John McTiernan, and Scooter Libby (Vice President Cheney's chief of staff) have in common? All were convicted of making false statements to federal agents - and those statements weren't under oath.

Title 18 of the United States Code, Section 1001, states in relevant part:

[W]hoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully— 

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; 

shall be fined under this title, imprisoned not more than 5 years.

In other words, it is a federal crime to lie to federal agents in any matter within the scope of their duties. Obviously, FBI agents are federal agents. Therefore, section 1001 could rear its head at some point down the road in the Kitzhaber/Hayes saga, especially given the latest news that FBI agents have already been interviewing government officials. The Oregon Live story gives some more indication of what the FBI is interested in:

Two agents - one FBI, one IRS - questioned [Dept. of Administrative Services Director Michael] Jordan for an hour. He said they focused on three questions. Two were about Hayes' work for Demos, a nonprofit that was one of her consulting clients. They asked about emails showing that Kitzhaber urged Jordan to hire a man connected to Demos.

Jordan said he told the agents he didn't feel pressure to hire the man and that he didn't know at the time Hayes was being paid by Demos.

Jordan said he also answered agents' questions about whether Kitzhaber's emails were being preserved. They were, he said.

I should emphasize that there's no reason to think that DAS Director Jordan made any false statements during the interview with the FBI. Indeed, anyone whom the FBI questions in this ongoing matter would be in a similar position of wanting to be careful about not giving any false responses. I'm simply using this aspect of the news story because (1) it shows that the FBI is actually talking to people already; and (2) these appear to have been fairly specific questions with specific answers, whose accuracy the FBI no doubt will be checking.

Section 1001 can be perilous territory for anyone who speaks to government agents because one can violate it by lying - or more importantly, by being perceived as lying - even if the subject-matter of the lie turns out not to have been a crime. This in fact perfectly describes what happened to Martha Stewart. The short story is that the Securities and Exchange Commission suspected that Stewart had engaged in insider trading with regard to stock in a biotech company named ImClone, which was working on a cancer drug called Erbitux. The day before the FDA announced that it was denying approval for further testing of Erbitux, Stewart had sold her entire holding of ImClone stock. By doing so, she avoided the severe drop in the stock price following the FDA's announcement, and saved herself over $45,000. When the SEC investigated, Stewart offered a number of false explanations* to conceal the fact that she had been tipped off to sell ImClone by her brokerage agent's assistant. The assistant was aware that something would be happening to ImClone stock because the agent also represented Samuel Waksal, the ImClone CEO, who had tried to sell his entire stake that same day (i.e., the day before the FDA announcement).

* For example, Stewart and her broker claimed that they had had an automatic sell order in the event ImClone stock fell below a certain price. If this were true, there would have been no need for the broker's assistant to have called Stewart to see if she wanted to sell.

This use of one client's (Waksal) information to benefit another (Stewart) may have been a violation of the brokerage firm's internal policies, but it did not constitute insider trading for the purposes of the securities laws. Hence, what Stewart did in terms of the stock sale was not insider trading. Yet, because she lied about it to SEC lawyers and FBI agents, she was convicted of violating section 1001 and served a short prison sentence. Thus, as the New Yorker's Jeffrey Toobin put it, "lying about something that wasn’t a crime."

Hence, numerous legal commentators have noted that section 1001 creates a disincentive to speak to the FBI, at least, not without a lawyer present. Oregon, by the way, doesn't have an equivalent statute to section 1001. There is a state crime of providing a false unsworn declaration, but that pertains to a false statement made under penalty of perjury but not under oath. There is also a state crime of unsworn falsification, but that relates to false statements made in connection with applying for a government benefit.

For much more about the history and rationale of section 1001, download an academic article I wrote a few years ago and read Part I.A.

Ex-Gov. Kitzhaber's defense lawyer pushes back regarding the leaked privileged communications

Photo by Stephen McKay

Earlier, I blogged about how Willamette Week published what appeared to me to be privileged emails between ex-Governor Kitzhaber and his attorney, Steve Janik. In the absence of some indication that Kitzhaber had waived the attorney-client privilege, I was not comfortable discussing the substance of those emails.

Now, Kitzhaber's criminal defense lawyer, Janet Hoffman, has opened fire with a strong letter charging that either a Department of Administrative Services (DAS) employee unlawfully accessed the servers for the purpose of copying the emails; or some outside person hacked DAS's servers. Hoffman argues "[i]n either case, the unauthorized access and subsequent theft constitute a Class C felony pursuant to ORS 164.377(2)(c) ... " It is necessary, she continues, to open an investigation as to how the emails were leaked to WW - and, the kicker is that Attorney General Ellen Rosenblum has a conflict of interest that prevents her office from conducting said investigation because she is married to the publisher of WW. (As it turns out, the top DAS official has already requested that the Oregon State Police investigate the source of the leaks, and two DAS employees have been on paid leave.)

It's important to recognize that Kitzhaber has had at least three distinct attorney-client relationships, one of which, of course, is with Hoffman. Then there is Steve Janik, who appears to be representing Kitzhaber in his individual capacity with respect to the various investigations. And finally, there is Liani Reeves, who served as Kitzhaber's general counsel.

On page 2, Hoffman's letter mentions the publication of Kitzhaber's email correspondence with Janik in the WW article, as well as earlier apparent disclosures. (Of those, one article in the Oregonian by Laura Gunderson appears to have relied on human sources, not emails - if so, Kitzhaber would have a hard time maintaining the privilege, since someone - the source - must have been told the contents of the conversation between Kitzhaber and his lawyer. Once the attorney-client communication is shared with anyone else (other than someone working for the lawyer), the privilege has likely been waived.)

In any event, since Hoffman zeroes in on the disclosure of privileged communications from Kitzhaber's personal email account, not the gmail account that he set up for his official account. Hoffman asserts in her letter that Kitzhaber "repeatedly communicated with his attorneys through his private gmail account to obtain legal advice concerning issues now under investigation by your office."

The limiting of her complaint to the attorney-client communications on the private gmail account is interesting because it would seem not to apply to any communications between Reeves and Kitzhaber, which presumably would have been sent via the official email (and certainly should have been if they weren't). As General Counsel to the Governor, Reeves represented Kitzhaber in his official capacity, which is important for at least two reasons.

First, it may mean that it is the Office of the Governor - and not the individual person who held the office at one time - that holds the privilege. This is the general rule for corporations and other non-human entities. For example, if the officers of corporation X end up being investigated for misconduct and get fired by the Board of Directors, to be replaced by new officers, any privilege over communications that took place between the former officers and the corporation's lawyers can be waived by the new officers, even though the new officers weren't the ones who took part in those conversation. If this rule similarly applies to state offices, then it would be Kate Brown - as Governor of Oregon - who decides whether to assert or to waive the privilege as to communications between Reeves and Kitzhaber.

Second, at least one federal appellate court (the level of court right below the U.S. Supreme Court) has concluded that privileged communications between government lawyers and public officials, while still entitled to some level of protection against compelled disclosure, are different from privileged communications between lawyers and private entities. That case, which arose out of the Clinton Administration's efforts to assert the attorney-client privilege over a conversation between then-First Lady Hillary Clinton and two White House lawyers:

And the Court recognized that "if the purpose of the attorney-client privilege is to be served, the attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected." Id. at 393, 101 S.Ct. at 684. Nevertheless, we believe that important differences between the government and nongovernmental organizations such as business corporations weigh against the application of the principles of Upjohn in this case. First, the actions of White House personnel, whatever their capacity, cannot expose the White House as an entity to criminal liability. (No one suggests that any of the conduct under investigation by the OIC could expose the White House to civil liability.) A corporation, in contrast, may be subject to both civil and criminal liability for the actions of its agents, and corporate attorneys therefore have a compelling interest in ferreting out any misconduct by employees. The White House simply has no such interest with respect to the actions of Mrs. Clinton. 

We also find it significant that executive branch employees, including attorneys, are under a statutory duty to report criminal wrongdoing by other employees to the Attorney General. See 28 U.S.C. § 535(b) (1994). Even more importantly, however, the general duty of public service calls upon government employees and agencies to favor disclosure over concealment. The difference between the public interest and the private interest is perhaps, by itself, reason enough to find Upjohn unpersuasive in this case. The importance of the public interest in questions of disclosure versus privilege is not unique to this case, for it was a key reason the Supreme Court rejected the concept of work product immunity for accountants: 

By certifying the public reports that collectively depict a corporation's financial status, the independent auditor assumes a public responsibility transcending any employment relationship with the client. The independent public accountant performing this special function owes ultimate allegiance to the corporation's creditors and stockholders, as well as to the investing public. This 'public watchdog' function demands that the accountant maintain total independence from the client at all times and requires complete fidelity to the public trust. To insulate from disclosure a certified public accountant's interpretations of the client's financial statements would be to ignore the significance of the accountant's role as a disinterested analyst charged with public obligations. 

Arthur Young, 465 U.S. at 817-18, 104 S.Ct. at 1503. The public responsibilities of the White House are, of course, far greater than those of a private accountant performing a service with public implications. We believe the strong public interest in honest government and in exposing wrongdoing by public officials would be ill-served by recognition of a governmental attorney-client privilege applicable in criminal proceedings inquiring into the actions of public officials. We also believe that to allow any part of the federal government to use its in-house attorneys as a shield against the production of information relevant to a federal criminal investigation would represent a gross misuse of public assets.

The key takeaways here are that (1) there are multiple attorney-client relationships here, and it is important to keep them distinct in terms of who can claim the privilege resulting from that relationship; (2) defense attorney Janet Hoffman is playing hardball; and (3) the original investigation of Kitzhaber and Hayes is starting to reach out like an octopus in unpredictable directions. Stay tuned.

Taking a look at the FBI subpoena to Dept. of Admin. Services, part 1

Last week, the FBI served a subpoena on the Department of Administrative Services, seeking production of documents relating to 15 named people (including ex-Governor Kitzhaber and ex-First Lady Cylvia Hayes) and to a list of companies/topics primarily concerning clean energy groups that Hayes dealt with, plus a few other topics such as (1) Hayes' state income tax returns and (2) personnel files. Needless to say, there is much to be learned about what the federal government's investigation is focusing on - indeed, far too much to cover in a single blog post.

For this entry, I'm going to look at one discrete piece involving Hayes. The subpoena seeks documents relating to:

Travel records including calendars, requests for permission to travel, travel itineraries, receipts for travel expenses, travel expense reports and/or requests for reimbursement, airline reservation confirmations, lodging reservation confirmations and invoices, and payments for airfare, lodging, meals, and entertainment.

All documents and records relating to Cylvia Lynne Hayes' use of State of Oregon credit cards or other forms of payment, including monthly statements and payment history.

There are a number of different ways travel and expense-related documents might be relevant to the federal investigation, but the most obvious starting point is to determine if Cylvia Hayes was a "public official." Oregon Revised Statute 244.020 defines a public official as:

any person who, when an alleged violation of this chapter occurs, is serving the State of Oregon or any of its political subdivisions or any other public body as defined in ORS174.109 (Public body defined) as an elected official, appointed official, employee or agent, irrespective of whether the person is compensated for the services.

(emphasis added). If Hayes was a public official, then the mail/wire fraud deprivation of the right to honest services theory* might well apply to the alleged misconduct that's been driving the news stories for the past two weeks.

* I'll write more about this in detail at another time, but the essence of the theory is that a public official who engages in self-dealing through kickbacks or bribery has deprived the public of the right to that official's "honest services."

If there are documents responsive to the two categories excerpted above, they might tend to support the conclusion that Hayes in fact was a public official if those documents include travel reimbursements, expense reports, and the like. After all, travel expense reimbursements are typically provided by the employer.

To be sure, the mere fact that someone has reimbursed you for travel expenses does not automatically make you an agent of that person/entity. For example, when I travel for academic reasons, it's usually to go to present a paper or to take part in a conference. Most of the time, it's the institution inviting me that pays for my travel expenses. Yet, that doesn't make me an agent or employee of that institution. I remain an employee of Lewis & Clark Law School. The key here is that the other institution is inviting me to do something that is supposed to provide some benefit to it, and of course, the fact that it is a one-shot interaction further demonstrates the lack of any agency or employee relationship.

Assuming that Hayes has had travel expenses reimbursed by the state of Oregon, it's not implausible that Hayes could have a similar, arms-length relationship with the state, where she was reimbursed because she was being invited or asked to do something on behalf of the state. On the other hand, the fact that she was living with and engaged to the Governor makes it seem unlikely that there would such a distant relationship with the state. More importantly, this will really turn on the exact content of those trips - who benefited, Oregon or Hayes (or both)?

The recent Willamette Week story on emails, including apparently privileged ones ...

Reporter Nigel Jaquiss of Willamette Week has been publishing scoop after scoop on the Kitzhaber-Hayes matter, and his latest story, which is online and in print today, gives an inside look at some of the ex-Governor's and ex-First Lady's emails that WW and The Oregonian have been fighting to get access to. Jaquiss weaves a picture of co-mingled finances, a Governor's fiance who refused to abide by the ethical guidelines set forth by the Governor's staff, and broad and grandiose ambitions on the part of Cylvia Hayes.

The end of the article delves into a different set of emails between Kitzhaber and attorney Steve Janik, who was representing Kitzhaber with respect to the investigation opened by the state Ethics Commission, quoting liberally from an email and a response.

Having gone through law school and practiced law for a short stint before getting into full-time law teaching, I still have seared into my brain the importance of the attorney-client privilege. It exists to ensure that the client will feel free to reveal all relevant information to his/her attorney without needing to worry about whether those revelations will become public. This in turn enables the lawyer to provide the most accurate legal advice to the client.*

* There are exceptions. A client's statement about future crimes that he/she intends to commit would not be privileged, because the lawyer is not there to help the client plan new wrongdoings, only to help defend against alleged past wrongs.

Therefore, whenever I see a communication between a lawyer and his/her client, I immediately wonder, is this privileged material? It's for that reason that I'm not going to get into the substance of the emails between Kitzhaber and Janik and what they might mean in terms of the mounting investigations against the ex-Governor and his fiance.

Oregon Revised Statute 40.225 codifies Evidence Rule 503, governing attorney-client privilege, and states in relevant part:

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client ...

(emphasis added). I've bolded "any" because I've seen some arguments floating around to the effect that the privilege only protects the attorney from being forced by a court to disclose the confidential communications. That can't be right, because when attorneys inadvertently disclose privileged material to opposing counsel during discovery, they are sometimes able to prevail upon the court to force the opposing counsel to return the privileged documents. See, e.g., Tinn v. EMM Labs, Inc., 556 F. Supp. 2d 1191 (D. Or. 2008) (applying Oregon law); State v. McGrew, 46 Or. App. 123 (Or. Ct. App. 1980). These are not cases in which lawyers used the privilege to shield themselves from courts; rather, they used the privilege to persuade a court to force another party to return privileged materials.

As the above discussion implies, occasionally privileged material gets disclosed by mistake to the other side. The mistake lies in not recognizing the privileged nature of the material during document review. In this instance, while it's not entirely clear how WW got the emails, it seems like they were leaked by someone with access to them.

I mention this possibility (probability?) because one might analogize the situation to ones where whistleblowers send classified government documents to the press in order to expose perceived government wrongdoing. RAND Corp. analyst Daniel Ellsberg famously copied most of the so-called Pentagon Papers* to send to the New York Times first, and later to the Washington Post.

* This was a secret, multivolume history of the United States' embroilment in the Vietnam War prepared by the Defense Department. The government claimed that irreparable harm would follow its publication, but in fact, it turned out that the harm stemmed from embarrassment.

More recently, former Booz Allen Hamilton contractor Edward Snowden gave author/activist Glenn Greenwald a huge trove of classified documents taken from the National Security Agency, which formed the basis of articles that Greenwald wrote.

There is a certain similarity where the whistleblower and the publisher know that the documents are classified government material (in the Ellsberg/Snowden examples) or attorney client privileged (in the current matter), but can argue that the public is entitled to know what the government wants to keep secret, particularly where the documents may reveal government misconduct. I'm not sure how far this analogy goes, however, because there is a difference: attorney client privileged materials reveal legal advice and strategy. To the extent they reveal past misconduct, it is a by-product of the need to disclose relevant facts to obtain accurate legal advice.

There's one other oddity about this story. The WW story hit the newstands early this morning, and the online version was posted one minute after midnight. Yet, as of 8:53 p.m. (i.e., nearly 21 hours later), neither Kitzhaber nor his attorneys had responded to inquiries from the Oregonian. (I say this based on the time stamp of the updated version of the Oregonian's story, which still states that there was no response.) You would think that even if they had nothing else to say, they would be screaming about the inappropriateness of publishing attorney client privileged materials.

First post, and a recap of where we are in the Gov. Kitzhaber saga

John Kitzhaber, soon to be ex-Governor of Oregon 
(By Oregon Department of Transportation. Uploaded by Smallman12q)

Last week, John Kitzhaber, our recently re-inaugurated governor, announced his resignation amid an ethical scandal/criminal investigation involving alleged influence-peddling by his girlfriend, Cylvia Hayes. The last week has been a media feeding frenzy, and the story has hit the national news. On Wednesday, Kitzhaber stepped down, replaced by Secretary of State Kate Brown. That appears to be the end of a nearly 40-year political career in Oregon, but as far as the criminal investigations go, things are just getting started. Oregon Attorney General Ellen Rosenblum is looking into potential violations of state law, most likely official misconduct. Meanwhile, the FBI has issued at least one wide-reaching subpoena for documents relating to the scandal, from which one might read the tea leaves as suggesting potential mail/wire fraud based on the theory of depriving Oregon citizens of the right to honest services.

In upcoming posts, I'll look at the federal subpoena, discuss the mail/wire fraud statute in more detail, and consider other issues as they arise - which, with this matter, has been on a nearly daily basis!