"The Governor's idiot fiance"....what might be read into Duke Shepherd's "harsh" email about Cylvia Hayes

Wow.

The other day, the Oregonian published an unsolicited email from Duke Shepherd, who had served as ex-Governor Kitzhaber's labor and human services policy adviser. The key part of the email reads:

For the record, other than keeping her occasionally updated on what we might be doing, the Governor's idiot fiancé had no engagement into the $100 M. Kitzhaber wanted a "game changing" investment in housing for homeless families -- because it cut across all the key priorities, but especially Early Learning. He directed Margaret and me to make it happen. We did. Margaret especially (we initially were aiming for $200M).

Cylvia had lots of mind numbing meetings on poverty. She gave lots of speeches. She had no role in this substantial and critically important decision on housing for the 15-17 budget. We kept her posted to keep her off our backs and off of his. But the budget wasn't hers.

"[I]diot fiance" ... ? That is pretty harsh (as the Oregonian characterized it).

Note that Shepherd now works for the Oregon Health & Science University. Back when he was working for Kitzhaber, though, he apparently dared not express such open contempt to Cylvia Hayes. The Oregonian printed a presumably representative email in which Shepherd, after being castigated by Hayes for not keeping her updated about some project, responded, "I'm very sorry for my oversight in communication on this matter. I should have remembered to update you in a timely manner."

To be fair, Shepherd's response seems entirely professional and civil. The point is that it stands in stark contrast to his current email. So what are we to make of the change in tone and substance?

One possibility is that this is some kind of damage control on behalf of Kitzhaber. By calling Hayes the "idiot fiance," Shepherd distances himself from her, and thereby adds credibility in stating that she had no influence on the low income housing project. If other former aides to the ex-Governor have similar things to say, that would benefit Hayes and Kitzhaber - though at the price of public humiliation - because it would tend to weaken any theory of influence peddling by her.

I went back to the known FBI subpoena to see if Duke Shepherd's name is listed; it's not. Of course, just because someone is listed on the subpoena doesn't mean he or she is a potential target*, and not being listed on the subpoena isn't any kind of immunity. However, it does suggest that as of right now, Shepherd's previous project isn't of primary interest to the FBI.

* Nkenge Harmon-Johnson is probably the easiest example of this; she's listed on the subpoena as someone whom emails to or from are to be produced to the FBI, yet she hasn't requested public funding for a lawyer, and it appears that she was a victim of Hayes' capricious temper.

Another possibility for the harsh email is that there is no more concern about burning a bridge, because the bridge has already collapsed completely with no hope of ever being rebuilt. If other former aides also recognize that the bridge is gone, there may be cooperation with the FBI going on behind the scenes.

Is Cylvia Hayes really entitled to taxpayer-funding of her lawyer to block access to her emails?

The Oregonian reports that former First Lady Cylvia Hayes' lawyer, Whitney Boise, argued in a filing last week that Hayes is entitled to public funding of his attorney's fees for representing her in her effort to block public access to her emails:

As a state agency, Ms. Hayes is authorized by ORS 192.450(3) to retain special counsel to represent her in the legal challenge to the Attorney General's disclosure order. As the Attorney General's Office is prohibited from acting as special counsel in this proceeding, Ms. Hayes has hired me. This conclusion, that Ms. Hayes be allowed to retain special counsel. is further codified in ORS 182.235. Under this statute, where the Attorney General has a conflict, the state officer or agency may employ its own special counsel. ORS 182.235(1).

Based on the above statutes, I am requesting that the legal fees and costs incurred by Ms. Hayes in this case be paid by the State of Oregon. Please let me know as soon as possible whether this request will be granted. 

(Note that there's a typo in the letter. The correct statutory section is ORS 180.235, not 182.235).

This is a creative argument. It may sound outlandish, but there are other situations in which the public is obligated to pay for the attorneys to defend someone that the public is, ostensibly, in an adverse position to - for example, criminal defense. The overarching principle is that the public interest in ensuring adequate legal representation for indigent persons charged with crimes is more important than the mere interest in the public fisc; after all, criminal defendants are presumed innocent until proven guilty, and it benefits society to have confidence that a convicted defendant received a fair trial.

It's less clear that in a public records dispute, there's a similar public interest, but I suppose one could argue that without some legal guarantee that a state agency would be able to defend its records from unreasonable or unwarranted public disclosure, qualified persons might be dissuaded from seeking public office or employment.

But what do Oregon laws actually say? Let's take a look. First, we'll start with ORS 192.450:

(3) The Attorney General shall serve as counsel for the state agency in a suit filed under subsection (2) of this section if the suit arises out of a determination by the Attorney General that the public record should not be disclosed, or that a part of the public record should not be disclosed if the state agency has fully complied with the order of the Attorney General requiring disclosure of another part or parts of the public record, and in no other case. In any case in which the Attorney General is prohibited from serving as counsel for the state agency, the agency may retain special counsel.

So far, Mr. Boise is correct. ORS 192.450 obligates the Attorney General to defend the state agency if she determines that the records sought should not be disclosed, and the petitioner (i.e., the person seeking the records) sues to overturn that determination. In this matter, however, Attorney General Ellen Rosenblum ordered the disclosure of the records, so the last sentence of subpart (3) is operative: "the agency may retain special counsel."

But that statute says nothing about who pays for the special counsel. Mr. Boise cites ORS 180.235, which is titled "Authority of agency to employ counsel" and which states in relevant part:

(1) Notwithstanding any provision of law to the contrary, whenever the Attorney General concludes that it is inappropriate and contrary to the public interest for the office of the Attorney General to concurrently represent more than one public officer or agency in a particular matter or class of matters in circumstances which would create or tend to create a conflict of interest on the part of the Attorney General, the Attorney General may authorize one or both of such officers or agencies to employ its own general or special counsel in the particular matter or class of matters and in related matters. Such authorization may be terminated by the Attorney General whenever the Attorney General determines that separate representation is no longer appropriate. 

(2) Any counsel so employed shall be a member of the Oregon State Bar and shall be paid a salary or other compensation out of the funds appropriated to such officer or agency.

It certainly makes sense that an agency disagreeing with the Attorney General's determination in a public records fight would be allowed to retain its own lawyer to litigate the matter. But notice that ORS 180.235(2) states that it is the agency that pays for the lawyer out of its own budget. This too makes sense, in that it creates an incentive for an agency to think carefully about whether each public records request is worth fighting. If so, the agency has to put its money where its mouth is, so to speak. Without such a requirement, the agency would have no incentive not to over-litigate public records disclosures.

The wrinkle here is that Ms. Hayes was paid no salary and had no state funds formally appropriated to her, though one might argue that the nature of her position as a state officer flowed from her relationship with the former Governor, and hence the funding should come out of the budget for the Governor's office. I imagine that if we were to go down that route, though, that current Governor Kate Brown would decline to pay for Mr. Boise's fees out of her budget - and if forced, she might just disclaim any privacy interest in the records on the part of the Governor's office.

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.