A law professor at the University of Kansas reviewed the decision handed down by U.S. Magistrate Judge James P. O’Hara this week compelling Kansas Secretary of State Kris Kobach to produce documents in a suit regarding the National Voting Rights Act.
One of those documents is one photographed by the Associated Press in Kobach’s hand as he was getting ready to walk into a meeting with then President-elect Donald Trump.
“Secretary Kobach said that this document didn’t exist,” said Lumen ‘Lou’ Mulligan, director of the Shook, Hardy & Bacon Center for Excellence in Advocacy at KU. “Then when the picture came out [the other side] said, it sure looks like it exists in the picture. Then, he produced it to the court.”
Mulligan asserts that the delays did not appear to please Judge O’Hara.
“The court was exceptionally frustrated with the Secretary,” said Mulligan. “It asked that the plaintiffs file for sanctions, which is a pretty bold step.”
Kobach attempted to assert Executive Privilege over the documents. Judge O’Hara held that since President Trump was not President yet, the privilege did not apply.
In terms of any potential sanctions, Mulligan says it’s more about the fact that Kobach denied the existence of the document than anything specific contained in it.
“The sanctioning event for Secretary Kobach would be for the fact that he said that the document didn’t exist, and it was only found out because of the picture,” said Mulligan. “If he would have said in the first instance, I have this document, but I’m not going to give it to you, because I believe I have executive privilege, he wouldn’t be in any trouble at all. It would be entirely his right to make a claim of a privilege and let the court decide whether that privilege exists or not. That would be entirely appropriate. That’s what good lawyers do.”
The judge himself, though, in the opinion appeared to question Kobach’s skill in this area in making a statement that the document in question did not exist.
In a footnote from his opinion, Judge O’Hara stated:
“These statements, most charitably, can be construed as word-play meant to present a materially inaccurate picture of the documents. After plaintiffs review the documents to be provided under this order, the court leaves it to them to decide whether to seek sanctions against defendant in this regard. But whether plaintiffs elect to file a sanctions motion misses the larger point. As mentioned earlier, Secretary Kobach is both a defendant and counsel of record, and in the latter capacity is an officer of the court with a duty of candor and a duty not to assert frivolous arguments. At the risk of stating what should be obvious, when any lawyer takes an unsupportable position in a simple matter such as this, it hurts his or her credibility when the court considers arguments on much more complex and nuanced matters such as attorney-client privilege, deliberative-process privilege, executive privilege, and indeed, the ultimate issue of whether Kansas’s DPOC law is preempted by the NVRA.”
Kobach’s office was ordered to produce the two identified documents with extensive redactions to limit the scope of what is released to that which is relevant to the case by Wednesday.