The document at the center of a lawsuit for Vice President Mike Pence’s emails has finally been released, but whether it will bring an end to the lawsuit remains to be seen.
What started as a 2014 records request has evolved into a lawsuit that could shape standards for government transparency in Indiana. The Indiana Supreme Court will decide whether or not to take up the case, which hinges on the released six-page document focused on legal strategies to fight against then-President Barack Obama’s executive order on immigration.
Greg Bowes, the lawyer on the other side, said he expected the document to contain specifics on legal strategy, especially since Pence fought so hard to keep it hidden. Instead, the document was fairly straightforward and outlined legal precedent to challenge Obama and expressing concern about executive overreach.
Officials from another state have released the document after two years of legal battles,t, which expresses concerns about Obama’s use of executive power. The state which released the documents is unknown, however, the files were leaked and then published by the website Rewire.
Pence’s lawyers think the document’s release should effectively end the case, but Bowes hopes the Supreme Court will recognize that the case isn’t just about the document.
“They want this case to be over,” Bowes said. “But we want the Supreme Court to rule on attorney-client privilege and deliberative materials in a way that promotes government transparency.”
In 2014, then-Gov. Pence was considering hiring private legal counsel to join a lawsuit against Obama over his immigration order. Indianapolis labor lawyer William Groth filed a records request for materials relating to Pence’s decision to hire private counsel. The documents Pence turned over were heavily redacted and didn’t include the six-page document prepared by the Texas Attorney General’s office.
Pence cited attorney-client privilege when he withheld the document, although he had not hired any legal counsel when he first received it.
“The unchecked expansion of executive authority wielded by President Obama threatens the constitutional balance of power,” the document reads. “If unchallenged, the President’s actions threaten to forever change the Nation’s constitutional foundation.”
The lawsuit against President Obama is anchored in the “Take Care” clause in the Constitution, which says the president “will faithfully execute Congress’s laws — not rewrite them under the guise of executive “discretion,”” the document states. It outlines several cases in United States history where the Supreme Court applied the clause to the president.
Bowes said the document’s central argument is somewhat ironic because Pence’s lawyers used arguments that favor expansion of executive power to keep it from the public.
In the ensuing lawsuit from the records request, Groth v. Pence, trial and appellate judges sided with Pence, but they took issue with Pence’s assertion that the judiciary had no right to force him to hand over documents, in which he cited a clause in the Indiana Constitution about separation of powers. He argued judicial intervention would interfere with the function of the Indiana executive branch.
“Both Obama’s and Pence’s arguments say executive power should have fewer and fewer limitations,” Bowes said. “But it is hypocritical to Pence to join the lawsuit complaining about Obama’s overreach and then assert executive authority to keep something secret from the public.”
Bowes had asked the Supreme Court to remand the case to trial court in light of Pence’s AOL email scandal, but after the six-page document was released last week, Pence’s lawyers filed their own motion, arguing the case was moot since the document at the case’s core was made public. Bowes responded with another motion, arguing the case was too significant to drop now, even in light of the document’s release.
“I think in general that this particular document is exactly what the public records law anticipates the people being allowed to see,” Bowes said. “Nothing in there proves they had any right to keep it secret.”
He pointed out that all the arguments from the document were used publicly by Pence’s lawyers in court, making it all the more confusing that they had fought to keep it hidden.
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