Friday, March 13, 2015

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 fiancĂ©e, 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.

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