For the past year and a half, Indiana Gov. Mike Pence has been mired in a legal dispute over government transparency as his lawyers fight to withhold the contents of an email that some say should be considered public record.
Critics of the vice president-elect's decision to not release the records — specifically an email attachment sent to Pence's chief of staff in 2014 — say it sets a dangerous precedent that would give the executive branch the ability to decide what's public and what's not, without much accountability.
William Groth, a Democratic attorney who sued Pence last year in an effort to unseal the records, said there's also some “element of hypocrisy,” as the Republican governor and President-elect Donald Trump spent the past several months criticizing Hillary Clinton over her use of a private email server during her time as secretary of state.
After an FBI investigation of Clinton’s emails, FBI Director James Comey told the Justice Department that no charges were appropriate.
State officials say there are no comparisons to be drawn between the two cases.
“They aren't even in the same universe,” Matt Lloyd, Pence's spokesman, told The Washington Post. “One broke the law, and the other did not.”
Groth argued that Pence improperly withheld public records but said the legal dispute over the governor's emails “has different issues and different concerns” than the Clinton case.
Indeed, Pence did not communicate classified information on an unsecured private server, and he certainly wasn't investigated for possible criminal conduct by the FBI. The question before the Indiana court is whether information sent through government emails are subject to public records laws, or whether they should be exempted under certain circumstances.
How the case unfolded
In 2014, Indiana joined 16 other states in suing the federal government to overturn President Obama's executive order shielding about 4 million illegal immigrants from deportation. These include children who entered the country undocumented with their parents and adults whose children are either U.S. citizens or legal permanent residents. The order directed the U.S. Department of Homeland Security to prioritize deporting felons.
The lawsuit, which was spearheaded by Texas and filed in December 2014, argued that Obama's action was an overreach of his authority.
Normally, a state's attorney general's office represents government officials and agencies in legal matters. In this case, the Indiana attorney general's office opted to not be involved. The governor's office then hired Barnes & Thornburg LLP, one of the major law firms in Indiana, on the taxpayers' dime.
Groth told The Post that he was concerned about taxpayer dollars being spent on the litigation, so he submitted a public records request in December 2014, asking for all communications between Pence and the state attorney general's office about his decision to join the lawsuit, the contract between Pence's office and the private law firm, and invoices that show how much the litigation costs.
Groth was unsatisfied with the records he received in response to his request, so he filed a lawsuit in Marion County court in June 2015.
What Pence disclosed
The governor's office released 57 pages of emails pertaining to Indiana's involvement in the federal lawsuit over Obama's executive order.
Groth also had received copies of invoices from Barnes & Thornburg showing how much Indiana spent in attorney fees and travel and lodging expenses while the case was being litigated in federal district court in Texas.
Records show the state spent nearly $79,000 over a course of about 10 months, from January 2015 to November 2015.
The Obama administration lost in federal district court, as well as in the U.S. Fifth Circuit Court of Appeals. Last June, the U.S. Supreme Court deadlocked at 4-4, likely a fatal blow to Obama's immigration initiative.
What Pence did not disclose
Among the emails that were released, one in particular stands out. Sent in November 2014 by Daniel Hodge, Texas Gov. Greg Abbott's chief of staff, to several state officials urging them to join the lawsuit against Obama. Among the recipients of that email was Pence's chief of staff, James Atterholt.
The email includes a PDF attachment called “white paper,” which Pence's office did not release. Its content is unknown, but Hodge's email describes it as an outline of legal theories supporting the lawsuit against Obama. Parts of the invoices, a few names in the email and one message were redacted.
Pence's attorneys argue in court records that the contents of the “white paper” and the redacted portions are protected from disclosure under attorney-client privilege. In April, a Marion County judge who reviewed the “white paper” agreed with the state and ruled that Pence did not violate Indiana's public records law. The state's public access counselor, who advises on issues over public records, had reached the same decision.
Groth, who is appealing the ruling in the Indiana Court of Appeals, argues that the document and the other redactions don't fall under attorney-client privilege. The “white paper,” for instance, was not information shared solely between Pence and his attorneys; rather, it was sent to 30 other state officials. It also wasn't written by Pence's lawyer but was drafted by the attorney representing Texas in the federal case, according to records.
A dangerous precedent?
The governor's attorneys argued in court records that Groth's appeal would require the court to “intermeddle with government functions reserved to the Governor under Indiana's Constitution.”
They cited a previous case in which the Indiana Supreme Court decided that a lawmaker's email correspondence with companies that lobby him will not be released. The state's highest court ruled that the judiciary shouldn't interfere with the internal functions of the legislative branch of government.
Raising the issue of separation of powers “would render all of (Pence's) emails undiscoverable,” Groth said. An appeals court decision in Pence's favor would set a dangerous precedent in which future governors would not be required to comply with open records laws, Groth said, adding that it would have a “significant impact on the transparency of state government.”
“It comes down to this: The court is giving up its ability to check another branch of government, and that should worry people,” Gerry Lanosga, who teaches media law at Indiana University, told the Indianapolis Star.
The appeals court is scheduled to hear oral arguments next week and could reach a decision within the next two months.