"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.

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.

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.