Ex-Governor Cannot Hide Emails Shared with State Lawyers in Corruption Investigation

The former Oregon governor cannot prevent emails shared with state lawyers from being introduced to a grand jury because of attorney-client privilege

United States v. Kitzhaber, 2016 BL 224564, 9th Cir., No. 15-35434, 7/13/16.

   The Ninth Circuit found that emails sent by a former governor to the state’s attorneys are not completely shielded by the attorney-client privilege in a grand jury investigation. The former governor used several personal email accounts to communicate with state attorneys regarding ethics violations, but, unbeknownst to him, were archived on state servers.

   The court rejected the ex-governor’s argument that he had an attorney-client privilege while sending those emails. While emails exchanged with privately held attorneys were protected, any email sent to the state attorneys were not because “[w]hatever privilege such communications may implicate is held by the State of Oregon, not [the governor] personally.” In addition, the court held that communication with a state’s attorney over “a consultation concerning conflict-of-interest or ethics laws is a consultation about an office holder's official actions and obligations. [A]n executive officer who consults with a government attorney concerning whether to let a certain contract go to a person with whom he has business dealings, or to a relative, is seeking advice about carrying out his official duties.”

http://www.bloomberglaw.com/public/document/United_States_v_Kitzhaber_No_1535434_2016_BL_224564_9th_Cir_July_.

Corruption Conviction of Former Governor Thrown Out

The definition for an “official act” under the corruption statute is too expansive and should be limited to decisions or actions “in such the official’s official capacity, or in such official’s place of trust and profit.”

 McDonnell v. United States, No. 15–474, U.S., 6/27/16.

   The corruption conviction of former Virginia Governor Bob McDonnell was overturned by the Supreme Court because the definition used by the Fourth Circuit for an “official act” was too expansive. As described by the Court, “[a]n official act is defined as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.” Only formal government actions or administrative determinations are subject to being considered an “official act,” not routine political courtesies.

   The Court remanded the case back to the lower courts to determine if there was evidence of McDonnell committing an “official act” under the new definition offered in the decision. If there was evidence, then a new trial may be required. Prosecutors in the case worry that this decision will make it more difficult for future prosecutions of politicians that violate corruption and bribery laws.

http://src.bna.com/ggx