Oregonian's account of ex-Gov. Kitzhaber's final days in office

The Oregonian has a gripping story about the twists and turns of John Kitzhaber's last days in office, sourced largely from unnamed advisors. It provides a detailed, behind the scenes peek at why Kitzhaber went back and forth about whether to resign from office. Not surprisingly, there was a sharp divide between the political advisors, who felt that there was no choice but to resign, and the lawyers, who felt that an offer to resign was a valuable bargaining chip to use with state and federal investigators:

Rival factions of his team contributed to his uncertainty with compelling but contradictory advice. For months heading to the end, his political advisers were increasingly pointed: The love of his life was political poison and would bring him down unless he distanced himself from her and disclosed everything about her business affairs. 

The attorneys argued just as adamantly that transparency was a luxury the governor could no longer afford.  Above all, the attorneys told him, don't quit. His job was his most important bargaining chip for likely settlement negotiations of ethical and perhaps criminal accusations.

Last month, Willamette Week published a story based in part on leaked emails between Kitzhaber and his lawyers (the same lawyers giving the advice in the quoted paragraph above), raising a question of whether the paper was relying on attorney-client privileged materials. This portion of the Oregonian story, on the other hand, appears to be sourced entirely through interviewed subjects. Unless the sources were Kitzhaber or his lawyers, it would mean that someone else was privy to those communications between the ex-Governor and his legal counsel.

This would mean that those particular discussions appear to be not privileged, because either the lawyers were providing this advice to Kitzhaber in front of other persons, or they provided it to him in private, and either they or he subsequently shared it.

ORS 40.225 (Oregon Evidence Rule 503) defines a "confidential communication" as:

[A] communication not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

Typically, the "in furtherance of the rendition of professional legal services" would mean paralegals, legal assistants, law clerks, or other non-lawyers working for the lawyer. "[T]hose reasonably necessary for the transmission of the communication" might be people similarly situated to the client, except instead of the relationship of furthering the providing of legal advice, is limited to the "transmission of the communication." It's hard to see how political advisors would fit into that category.

Courts can be sticklers about the need to protect the confidentiality of attorney-client communications. This came up during Martha Stewart's prosecution for false statements and obstruction of justice, when she forwarded an email from her attorney to her daughter. Although she was ultimately able to prevent the government from introducing that email into evidence because it was ruled to be attorney work product*, the trial judge agreed that the attorney-client privilege had been lost by sending it to her daughter: "Stewart's June 23 e-mail to Nussbaum was clearly protected by her attorney-client privilege [snip] until she waived that privilege by forwarding a copy of the e-mail to her daughter...."

* Work product is a related kind of protection than the attorney-client privilege, but somewhat broader in scope. The attorney-client privilege is essentially inviolate, whereas work product can, on rare occasions, be overcome. However, work product can be shared more freely than privileged materials.

What is the likely impact of Amanda Marshall's leave on the Kitzhaber/Hayes investigation?

There is some weird irony in the fact that the most notorious investigative matter of Amanda Marshall's prosecutorial career has been that of a politician brought down primarily because of a relationship, and it's now possible that her career as a public official will end because of a relationship. [UPDATE 3/20: The Oregonian's Bryan Denson reports that there wasn't any romantic relationship, but rather too much texting and emailing, possibly about the Assistant U.S. Attorney's personal life.]

But irony aside, one might wonder what will be the likely impact of Marshall's leave on the ongoing investigation of ex-Governor Kitzhaber and Cylvia Hayes.

As I see it, the likely impact is pretty much ... zero.

U.S. Attorneys are frequently tapped to become U.S. District Judges, which is not surprising, since the candidates for both positions are usually selected from a pool recommended by the Senator(s) of that State, assuming congruent political party affiliation with the President. (Or, they may become state judges, which is what happened with Karin Immergut, who served as the U.S. Attorney in Oregon from 2003 to 2009.)

Yet, when such U.S. Attorneys leave to become judges, the work of their offices does not come crashing to a halt. That's because the day-to-day work of the investigation is handled by Assistant U.S. Attorneys, and there's typically a Chief of the Criminal Division who would supervise those AUSAs. (In a large office, like that in L.A., the Criminal Division is further divided into separate units such as Major Frauds, Narcotics, and so on - providing even more levels of supervision.) That's not to say that the U.S. Attorney is just a figurehead position, and of course, in a high profile matter like the Kitzhaber investigation, we'd expect that the U.S. Attorney is involved in major decisions. But in the absence of a U.S. Attorney, it's not as if the remaining structure in place would be incapable of proceeding onward.

US DOJ clears up (sort of) who is being investigated in the U.S. Attorney's Office in Oregon

Near the end of last week, news broke that U.S. Attorney Amanda Marshall, who had earlier announced that she was taking a leave due to a health problem, was under investigation by the Justice Department for an alleged "inappropriate relationship."

Subsequently, Marshall's attorney, Charese Rohny, told the press that DOJ had informed her that the investigation was of the Assistant U.S. Attorney in the alleged relationship, not Marshall. Today, the Oregonian reported:

On Monday, the Justice Department took issue with Rohny's statement. 

"The statements in the article attributed to a lawyer for U.S. Attorney Marshall do not accurately represent the position of the OIG," the department said. 

That apparently means  Kerin isn't the subject of the investigation and that Marshall is. But Justice Department officials declined to elaborate. 

"Consistent with our policies regarding OIG investigations, we will not comment further," the department said.

Hmm.... That's not explicit confirmation that Marshall is the subject of the investigation, but it's probably as close as you can expect from the Justice Department. Did Rohny misunderstand or mis-state what she had been told by DOJ, or did DOJ change its tune?

Behind the scenes of the Oregon Attorney General's suspension of the Kitzhaber/Hayes investigation

U.S. Attorney Amanda Marshall 
(photo courtesy of U.S. Dep't of Justice)

There hasn't been much news about the investigation of ex-Governor Kitzhaber and ex-First Lady Cylvia Hayes lately, but the Oregonian had a couple of interesting little tidbits yesterday. First, United States Attorney Amanda Marshall has stepped down indefinitely due to health issues.

[UPDATE: Or perhaps her stepping down was due to a Justice Department investigation of a possible "inappropriate relationship."]

Second, Oregon Attorney General Ellen Rosenblum's suspension of the investigation of Kitzhaber and Hayes a few weeks ago wasn't so much voluntary as it was imposed by the U.S. Attorney's Office

Ellen Rosenblum, Oregon's attorney general, wanted to team up with the federal agencies investigating the influence-peddling scandal involving then-Gov. John Kitzhaber and his fiancée, Cylvia Hayes. 

Rosenblum thought for a time she was part of a joint state-federal investigation. But federal authorities wanted her out. They got their way. 

Federal authorities forced Rosenblum to suspend an unprecedented investigation of a sitting governor less than three weeks after it started.

One might wonder if the two stories are connected, but without any more information, it would be baseless speculation. Besides, it's unlikely that Marshall's leave will impact the federal investigation in any meaningful way, because there are career prosecutors who are doing the day-to-day work on the matter.

The Rosenblum news is intriguing in that it leads one to wonder why the investigation didn't proceed as a joint federal-state matter. After all, the considerable advantages of information sharing between state and federal officials is one of the reasons underlying the joint-terrorism task force. Because many key witnesses in this matter are state employees, one might expect that some would feel more comfortable speaking to the Oregon Attorney General's office than to federal investigators.*

* Of course, one might note that Amanda Marshall came to the U.S. Attorney's Office by way of the state Attorney General's Office.

One difference is that the joint-terrorism task force consists of two (or more) law enforcement agencies investigating potential criminal wrongdoing by private individuals, whereas this matter involves potential misconduct by state government officials. Thus, one possible explanation for the federal investigators' insistence on effectively recusing Rosenblum is a concern that she could not credibly investigate the man who appointed her to her current office. (To be fair, at the time she was appointed, she had already won the Democratic primary to succeed John Kroger as the Attorney General, and was expected to win the general election easily, which she did.)

The notion that government officials might be too close to investigate or try other officials isn't particularly novel. In a big case from the mid-1990s, all of the federal district judges in San Diego recused themselves from presiding over the judicial corruption trial of three state court judges, out of concern that they could not be seen as credibly impartial due to their long-time association with the defendants. To be sure, this isn't the same as saying that those federal judges couldn't have presided fairly, just that there might be an appearance of partiality.

I could see Ellen Rosenblum facing similar issues. If she remained involved (even as just the nominal head of the state-side of the investigation, even though we would expect career prosecutors to be doing the day-to-day work) and the ultimate determination was that no criminal charges should be brought, parts of the public might question the result.

One solution to this, to keep the state involved yet avoid any concerns about the Kitzhaber-Rosenblum connection, would be to appoint a special prosecutor to lead the state-side of the investigation. This, of course, was the theory behind the federal Independent Counsel statute, which created a mechanism for the U.S. Attorney General to refer a matter involving potential Executive Branch misconduct to a three judge panel, which would then appoint someone to head up the investigation. Congress enacted this statute in the wake of the infamous Saturday Night Massacre, when the U.S. Attorney General and Deputy U.S. Attorney General both resigned rather than fire Special Prosecutor Archibald Cox, who was investigating the Watergate scandal and apparently doing too good of a job of it in President Nixon's eyes. (Solicitor General Bork stepped up and fired Cox.)

When Ted Olson became the target of a subsequent Independent Counsel investigation, he challenged the constitutionality of the statute as a violation of separation of powers. He lost, 7-1 (Morrison v. Olson), with only Justice Scalia dissenting, but the judgment of history has been that Scalia was basically right as far as the independent counsel act's being bad policy. Scalia wrote:

Under our system of government, the primary check against prosecutorial abuse is a political one. The prosecutors who exercise this awesome discretion are selected and can be removed by a President, whom the people have trusted enough to elect. Moreover, when crimes are not investigated and prosecuted fairly, nonselectively, with a reasonable  sense of proportion, the President pays the cost in political damage to his administration. If federal prosecutors "pick people that [they] thin[k] [they] should get, rather than cases that need to be prosecuted," if they amass many more resources against a particular prominent individual, or against a particular class of political protesters, or against members of a particular political party, than the gravity of the alleged offenses or the record of successful prosecutions seems to warrant, the unfairness will come home to roost in the Oval Office.

Scalia's argument would suggest that Rosenblum's Justice Department should have been allowed to participate in the investigation, because if she were perceived as being insufficiently attentive, "the unfairness [would] come home to roost in the [Governorship]."

At this point, we might note three points: (1) Kitzhaber is no longer in office, so perhaps there should be less concern about any perception that Rosenblum might go easy on him based on his having appointed her (and more importantly, a concern that he would still hold sway over her for reasons other than, perhaps, assumed gratitude); (2) imposing the perceived unfairness on current Governor Kate Brown seems problematic; and (3) crucially, in Oregon, the Attorney General is elected, not appointed. This last point cuts both ways, as it weakens the application of Scalia's argument as to the separation of powers point, but it strengthens it as to the control that voters ultimately have. If Rosenblum is indeed perceived as being too soft on Kitzhaber, the voters know who to act against.

In that way, perhaps the feds have done Rosenblum a favor. Now she no longer has to navigate the waters of being seen as sufficiently aggressive in her investigation.

Prior restraints and leaked attorney-client privileged materials

The New York Times edition on the day of the Pentagon Papers decision

One of the interesting nuggets in the Oregonian's Friday story about ex-Governor Kitzhaber's lawyers' efforts to fight the FBI subpoena is the following:

McDermott demanded that the state Justice Department, headed by Attorney General Ellen Rosenblum, file a temporary restraining order to block the publication by Willamette Week of emails Kitzhaber had exchanged with McDermott's partner, Stephen Janik. Rosenblum is married to the weekly paper's publisher, Richard Meeker.

A court order that blocks a newspaper (or anyone else) from publishing something is called a "prior restraint." Because of the First Amendment, most prior restraints are unconstitutional. In The Pentagon Papers Case (1971), the Supreme Court refused to stop the New York Times and the Washington Post from printing excerpts from a classified, 47-volume historical study of the United States' entry into the Vietnam War. The two papers had received the classified material from a whistleblower at RAND Corp. named Daniel Ellsberg. The Supreme Court explained:

"Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963); see also Near v. Minnesota, 283 U.S. 697 (1931). The Government "thus carries a heavy burden of showing justification for the imposition of such a restraint." Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971). The District Court for the Southern District of New York in the New York Times case and the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit in the Washington Post case held that the Government had not met that burden. We agree.

Other cases have suggested that it would take grave, irreparable harm to national security or other such equivalent damage to justify a prior restraint. See Near v. Minnesota (1931) (noting that critical information such as "sailing dates of transports or the number and location of troops" might be subject to a prior restraint).

With that in mind, let's take a look at Oregon's attorney-client privilege law, ORS 40.225. Subsection 2 of that statute states:

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:

(a)Between the client or the clients representative and the clients lawyer or a representative of the lawyer;

(b)Between the clients lawyer and the lawyers representative;

(c)By the client or the clients lawyer to a lawyer representing another in a matter of common interest;

(d)Between representatives of the client or between the client and a representative of the client; or

(e)Between lawyers representing the client.

(emphasis added). On its face, the statute appears to authorize a prior restraint against publication of attorney-client privileged material. But would such a court order be constitutional?

In State ex rel. Sports Management News v. Nachtigal (1996), the Oregon Supreme Court ruled that an analogous statute, which permitted courts to block publication of "alleged trade secrets," could not authorize trial courts to issue prior restraints in violation of the Oregon Constitution's free speech clause (i.e., Oregon's equivalent of the First Amendment). The court explained:

A statute that is written in terms that focus on the content of speech is invalid on its face, unless it fits "wholly" within some historical exception. [citations omitted] In this case, Adidas has not demonstrated, nor have we otherwise found, the existence of a historical exception for the prior-restraint protection of trade secrets from publication by a third-party publisher who receives information lawfully. Absent a historical exception, that publication is protected speech that may not be restricted under the Oregon Constitution.

To be sure, trade secrets are not the same thing as attorney-client privileged material. A federal trial court in Florida faced a strikingly similar situation to the one in this matter. In that case, U.S. v. Noriega (1990), CNN had obtained video recordings of numerous conversations involving a federal defendant (Manuel Noriega, formerly the ruler of Panama), including some that consisted of attorney-client communications. The trial court temporarily blocked CNN from airing those recordings (although CNN did in fact air some), and while it ultimately lifted the stay after about a month after reviewing the contested material, the court defended its earlier decision as necessary to be able to weigh the balance between the defendant's Sixth Amendment right to a fair trial against CNN's First Amendment right.

In essence, this "fair trial/free press" problem would require a court to consider whether publication of additional attorney-client privileged materials would infringe ex-Governor Kitzhaber's right to a fair trial, should he ultimately face criminal charges. For example, publication of privileged materials that reveal detailed trial strategies might well irreparably harm a criminal defendant. Answering the question of whether the emails in this matter fall into that category would, of course, require examination of those emails, which is something that a court would do in camera (meaning in secret).

The Noriega case isn't binding on Oregon courts, but its analysis of the same issue provides a data point suggesting that the prior restraint may be difficult to obtain, but there might be circumstances in which one might be upheld.

Is it the fox guarding the henhouse when a lawyer reviews her client's documents to determine which can be disclosed?

Two weeks ago, ex-Governor Kitzhaber's defense lawyer, Janet Hoffman, went on the offensive, calling for an independent investigation of how Kitzhaber's emails were leaked to the press. Hoffman also sought to block the Department of Administrative Services (DAS) from complying with a federal subpoena until she had a chance to review the documents herself. The Oregonian reports that DAS has agreed to give her until March 16 to file a motion in federal court to quash the subpoena.

But is what Hoffman asked for in the first place crazy? It might sound like the fox guarding the henhouse to have a client's lawyer go through the client's documents to decide which can be produced to the other side, but it's actually the normal mode of business in civil litigation. Say plaintiff sues defendant for employment discrimination. Each side might seek documents from the other. Each side's lawyer goes through the discovery requests and the documents to determine which are responsive to the requests, and of those, which will be withheld on privilege or other confidential grounds. Those that are withheld are identified on a privilege log, which lists the documents by title, author, date, and basis for withholding (i.e., attorney-client privilege or attorney work product). The privilege log allows for some limited basis of challenging the withholding.*

* For example, if a party claimed the attorney-client privilege over a document that was neither written by a lawyer nor sent to one, there would be reason to question the validity of the assertion of the privilege.

While there are probably isolated instances where attorneys intentionally engage in discovery misconduct, this system seems to work in general because lawyers have a good reason not to destroy or conceal documents. Lawyers do have a duty to represent their clients zealously, but within the rules. A lawyer who destroys or conceals documents for a client risks being disbarred or worse, and at the end of the day, it's probably not worth it for the short term gain to this client.

(When I was a brand new associate at a law firm, at the New Associates' Retreat, a partner told us the story of a matter where an unnamed client had told the lawyer about the existence of a very damaging document. When the lawyer went over to examine the document, the client said that the document was gone. The lawyer said, "I wish you hadn't done that. Now we're going to have to resign as your lawyers." It turned out that the client hadn't destroyed the document but was hoping to get away with not producing it. The bluff having been called, the client had no choice but to turn it over to the lawyer. The lesson of the story for us was that no client was worth risking the firm's reputation or our law licenses.)

Of course, the federal subpoena in question stems from a criminal investigation, not civil litigation, and it is the case that where the government is involved as a litigant, particularly in criminal cases, the usual approach sometimes gives way to one where different teams of lawyers play roles, with one group informally known as the "dirty" team examining potentially privileged documents and segregating those from the unprivileged ones. A separate "clean" team that has not been exposed to the privilege documents carries out the prosecution. (For examples, see here and here.)

We might compare the situation in the Kitzhaber/Hayes saga to the new revelations about former Secretary of State Hillary Clinton's use of a private email account for her official business. There is a certain degree of similarity between Clinton and Kitzhaber in terms of what each did, and perhaps the reasons that skeptics might suspect as to why they did so. But there is an important difference between having Janet Hoffman go through Kitzhaber's emails for privilege review, versus Clinton's staff reviewing the documents, with what survives their review now being turned over to the State Department.

The difference is that Hoffman, while serving as Kitzhaber's lawyer, is clearly independent in the sense that she has a professional existence that does not depend on Kitzhaber; if anything, he at this point is far more dependent on her than the other way around. Clinton's staffers, on the other hand, were and are, in a sense, tied to her political fortunes, and so it would be unreasonable to expect the same level of independence from them.