Pence, Texas fight to keep report secret
When the Texas attorney general asks other states’ governors to join a lawsuit against the Obama administration, does that solicitation create an attorney-client relationship?
The answer to that question will determine whether Indiana Gov. Mike Pence, now vice president-elect, can keep secret a Texas report that discussed legal strategy for a planned — and ultimately successful — attack on President Barack Obama’s executive actions on immigration.
An Indiana appeals court is considering whether the Texas white paper can be withheld under attorney-client privilege.
In Texas, Attorney General Ken Paxton’s office echoed the same line of reasoning, weighing in on the side of secrecy last week when it denied the Austin American-Statesman’s request for a copy of the white paper under state public information laws.
The situation began two days before Thanksgiving 2014, when
then-Attorney General and Gov.-elect Greg Abbott’s chief of staff sent an email to the chiefs of staff of 28 Repub- lican governors. He was following up on a private meet- ing Abbott had held with
their bosses at the Republican Governors Association annual conference in Flor- ida to discuss his plans to sue the Obama administration.
“During last week’s meet- ing, Governor-elect Abbott promised that we would circulate a white paper outlin- ing the legal theories supporting the state’s legal challenge to the other governors,” chief of staff Daniel Hodge wrote. “A copy of that white paper is attached to this email.”
Given the lengthy legal briefs included in the lawsuit, there is probably nothing surprising in the white paper, but that is only a surmise because, two years later, lawyers for Pence — who was one of those 28 governors — are in court fighting to prevent public release of the document.
In Texas, Lauren Downey, assistant attorney general
and public information coordinator in Paxton’s office, initially denied the States- man’s request for the white
paper because it is involved in pending litigation and therefore exempt from disclosure.
The lawsuit was seeking to block Obama’s use of executive action to provide protection from deportation for up to 5 million immigrants in the country illegally — and it succeeded. Initiated by Abbott and pursued by Pax- ton, the Texas-led effort won an injunction in the 5th U.S. Circuit Court of Appeals in November 2015, a judgment that was affirmed when the Supreme Court split 4-4 on the case in June.
Asked what litigation was still underway, Downey replied by email, “My apologies, the litigation I was referencing is indeed now complete. However, the docu-
ments are all still excepted from disclosure as privileged attorney-client communi- cations.”
The question of whether the Texas attorney general’s office had an attorney-client relationship with the governors to whom Hodge sent the white paper is the nub of the argument in Indiana.
In April, a Marion County Superior Court judge who heard the case, brought by Indianapolis lawyer William Groth, concluded that the state could withhold the paper. Groth appealed, and a three-judge panel of the Indi-
ana Court of Appeals heard oral arguments Nov. 21.
Attorney Greg Bowes, representing Groth, argued there was no attorney-client relationship.
“We have a Texas attorney writing a white paper for the benefit of anyone who might want to join a lawsuit,” Bowes told the court. “None of those people had decided to join a lawsuit yet.”
“This was a solicitation to draw as much broad support for this proposed litigation as possible,” Bowes said. “It’s
not people who had a legal problem who sought out an attorney. It’s the other way around.”
But Joseph Chappelle, representing Pence, said Abbott and the governors had established an attorney-client relationship at the meeting in Orlando, with the white paper serving as an anticipated follow-up.
“A group of individuals is meeting with the attorney general for Texas — who is noted, one of his claims to fame is that he has chal- lenged successfully the Obama administration in different contexts — to talk about a legal challenge to the president’s executive action on immigration, and the white paper is, as pointed out in the email, as promised from Gov. Abbott,” Chap- pelle said.
Even if that were true, Bowes argued, Hodge also shared the email with governors whose states didn’t join the lawsuit. At that point, the information was no longer confidential, he said.
In the email, Hodge had noted that, “because some governors indicated last week that their attorneys general may not elect to join our legal challenge, Gov.-elect Abbott asked that I share the white paper with your office so that governors whose AGs decline to join the case may do so on behalf of their states.”
That is what happened in Indiana, where Attorney General Greg Zoeller passed on it but authorized Pence to retain Indianapolis lawyers Chappelle and Peter Rusthoven to represent the state in the suit.
That’s what prompted Groth to file a public records request. He wanted to find out how much it was costing state taxpayers to hire private attorneys to stand alongside Texas lawyers who would have pursued the case with or without Indiana’s involvement — and at no expense to Indiana taxpayers.
Also, Groth liked Obama’s immigration policies.
“I was offended that the state was going to jump in on the side of Texas,” he told the Statesman.
Attorney-client privilege is the main, but not the only, legal argument being made by Pence’s lawyers, who also contend that the state’s open records law simply doesn’t apply to the governor and his staff.
“It could be that they’re trying to hide something, or it could be that they’re just deciding we’re not entitled to see it under one of the statutory exceptions in the disclosure law,” Groth said. “I don’t know which it is, or maybe it’s a little of both.”
But, he said of the white paper, “They certainly could provide it to us even if technically they didn’t have to.”
Hodge, now Abbott’s chief of staff, and Matt Hirsch, Abbott’s communications director, said they were leaving the matter to the attorney general’s office and had no additional comment.