The
Better Government Association filed a lawsuit last week that could create lots
of fireworks. The BGA wants to force Governor Rod Blagojevich to release
federal grand jury subpoenas his administration has been served between January
and July of last year.
The
BGA initially filed a Freedom of Information Act request last year to pry loose
the subpoenas. The Blagojevich administration had made it a standard practice
to disclose subpoenas until the feds started nosing around the governor's
office itself about a year ago, then all cooperation stopped.
The
administration claimed last week that US Attorney Patrick Fitzgerald's office
has "asked us not to discuss or share information about their work, and
we've honored that request." The governor's lawyers have also claimed to
the BGA and other media outlets that state law does not require the subpoenas
to be released to the public.
Attorney
General Lisa Madigan's office strongly disagreed with the governor's point
about federal subpoenas being exempt from Freedom of Information Act
requirements. Madigan's office issued a strongly worded opinion last fall which
argued that the governor must disclose the subpoenas.
Also,
a simple "request" from a US Attorney to withhold information that is
required by state law to be disclosed is not exactly the firmest of legal
grounds. If the US Attorney issued a direct order commanding that disclosure
was strictly prohibited because it would impede a federal investigation, then
may have a case. But a mere "request" can't override long established
state law. So far, the governor's office has not even disclosed the specific
language that US Attorney Fitzgerald used in his "request," so we are
essentially forced to take the governor's people at their word.
The
governor's office also argues that Madigan is being hypocritical because her
own investigative division often asks that subpoenas be kept confidential.
However, Madigan's office says that even those requests do not outweigh the
state's FOIA laws.
Here
is where it gets really interesting, though. Attorney General Madigan will
reportedly not be joining the Better Government Association's lawsuit. Instead,
Madigan will likely represent the governor's office in the case.
Madigan
is, per the Constitution, the state's chief legal officer, and she therefore
has the sole authority to represent any state official or office that is sued
in their official capacity. The governor's office can request that the AG
appoint a special attorney general to handle this case, but Madigan will
reportedly resist.
We
got a taste of this sort of thing last fall when Attorney General Madigan
dumped the law firm she had appointed to defend some top IDOT officials,
including Transportation Secretary Tim Martin, in a case of alleged politically
motivated firings. Madigan took over the case herself and began doing things
that were pretty obviously not in the defendants' best interest, but were in
what she concluded to be the state's best interests as a whole. For instance,
Madigan began negotiations with the plaintiffs in the case to comply with their
subpoenas, which Martin and the other defendants had previously fought tooth
and nail, contending the subpoenas were "overly broad and
burdensome,"
Secretary
Martin and the other defendants sued, claiming Madigan had a conflict of
interest, but a judge ruled in August that Madigan, as the state's chief legal
counsel, was "fully authorized to represent the state in this case."
A couple of months later, a different judge ordered Springfield attorney Mary
Lee Leahy to give a deposition in the IDOT firing case, which Martin and his
codefendants had tried to block for months, contending they had an
attorney-client privilege. Leahy had advised several state agencies about
hiring practices, including IDOT. After Madigan took over the IDOT case, she
concluded there was no attorney-client privilege and didn't argue against
Leahy's deposition.
The
bottom line here is that we will very likely be treated to the spectacle of
Lisa Madigan "defending" Rod Blagojevich's office in a FOIA case
where the plaintiffs are using Madigan's own opinion to make their arguments
that the subpoenas should be made public.
This
may seem a bit upside down, and maybe even seem somewhat unfair to the governor
that the lawyer who will represent his office in this case is so obviously
hostile to his personal interests, but them's the breaks. Attorneys general are
supposed to put the interest of the state first, not act as a personal attorney
to whichever agency gets sued. This could get real ugly, real fast if the
governor fights back.
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Rich
Miller also publishes Capitol Fax, a daily political newsletter, and
thecapitolfaxblog.com