Power

Mike Pence Has an Email Transparency Problem

Republican Indiana Gov. Mike Pence, the guy who is going to be vice president, will head to court on Monday to continue battling public disclosure of a document attached to an email that he received two years ago, thus solidifying the loathsome "email" as this nation's most boring conversation piece.

Vice President-Elect Mike Pence called Hillary Clinton more crooked than Richard Nixon and unfit to govern due to the flap over her use of a private email server during her time as Secretary of State. Now, Pence is resisting making public a document he received through email. Alex Wong/Getty Images

Email.

It’s a loathsome word these days, and if I had the power to ban it from usage, I might just do it—First Amendment be damned.

For months, all we’ve heard about are Hillary Clinton’s emails—where are the 33,000 deleted emails? Did she send classified email on her private server? How tight was her email emoji game? And after she lost the election, my anguish at the thought of having to listen to the man we have just elected as president was assuaged, albeit only slightly, by the thought of never again having to engage in endless conversations about emails, unless it is to complain to whomever will listen that I have 76,000 unread ones and they won’t go away despite my best efforts.

But of course, I am not that lucky.

That’s because Republican Indiana Gov. Mike Pence, the guy who is going to be vice president, will head to court on Monday to continue battling public disclosure of a document attached to an email that he received two years ago, thus solidifying the loathsome “email” as this nation’s most boring conversation piece.

The case stems from Pence’s decision in 2014 to join Texas in a lawsuit challenging President Obama’s Deferred Action for Parents of Americans (DAPA) immigration policy, which he announced in November of that year. Combined with Obama’s Deferred Action for Childhood Arrivals, another immigration policy that he had implemented in 2012, DAPA would have shielded about five million undocumented immigrants from deportation.

This, of course, outraged politicians in many Republican-controlled states throughout the country. They complained that Obama had exceeded his authority. Leading the charge was Texas then-Gov.-elect Greg Abbott (R), who filed a lawsuit in federal court, U.S. v. Texas, challenging Obama’s immigration policies. (The federal court blocked the immigration policies, and then in June of this year, an evenly split U.S. Supreme Court affirmed that decision.)

Twenty-five states, including Indiana, ultimately joined Texas’s legal crusade. But it’s how they became one big litigation-happy family that is at the heart of Pence’s email imbroglio.

Once the decision to sue had been made, Abbott’s chief of staff, Daniel Hodge, reached out to 30 states asking if those states would like to join Texas’ lawsuit.

Gov. Pence, who had called Obama’s immigration policy “a profound mistake,” according to court documents, jumped onboard the litigation train. After a green light from Indiana’s attorney general, Pence hired Barnes & Thornburg, an Indianapolis law firm, to represent the State of Indiana, and began racking up attorneys’ fees at the expense of Indiana taxpayers.

This puzzled William Groth, a Democratic labor lawyer well known for representing the plaintiffs in Crawford v. Marion County Election Board, a 2008 U.S. Supreme Court case that challenged the constitutionality of Indiana’s voter identification law. He wanted information about Pence’s decision to hire outside counsel and the cost to taxpayers of that decision, and so he filed an open records request under Indiana’s Access to Public Records Act seeking that information.

“I think joining the lawsuit without the attorney general and hiring that firm was a waste of taxpayer dollars and the people have the right to know how much of their money was spent,” Groth told IndyStar.

In response to Groth’s records request, the Pence administration turned over redacted invoices from Barnes & Thornburg, along with 57 heavily redacted emails, according to court documents.

One of those emails was Hodge’s attempt to corral support for Texas’ lawsuit. In addition to the invitation for other states to join in, the email also attached a “white paper” outlining the legal theories supporting Texas’ challenge.

Though Pence turned over Hodge’s email to Groth, he did not turn over the “white paper” that was attached. He claimed that it was “attorney work product” and therefore exempt from disclosure under Indiana public records law.

Groth wants that white paper. Thus far, however, he has been unsuccessful in getting it.

After a trial that lasted a year, the Indiana Superior Court ruled in Pence’s favor, according to a report from the Indy Star. A recent Indiana Supreme Court case provided the justification: In Citizens Action Coalition v. Indiana House of Representatives, several advocacy groups tried to obtain emails between utility companies and the chairman of the House Energy Committee, Rep. Eric Koch. Koch refused to turn them over, arguing that they were “legislative work” and not subject to disclosure under Indiana’s public records law. The Supreme Court ruled that the issue was “nonjusticiable,” which is legalese for “not a matter for the courts to decide.” In other words, it wasn’t for the Court to decide whether or not the emails counted as legislative work.

The trial court in Pence’s case cited Citizens Action Coalition when it ruled that Pence’s refusal to turn over the white paper was also nonjusticiable. In short, the court would not order Pence to reveal the contents of the white paper.

Groth, however, thinks the trial court got the law wrong. “I think governmental transparency is an important concern of anyone who lives in a democracy—the governor cannot put himself above the law,” he told IndyStar.

On Monday, Groth will get an opportunity to make his case before the Indiana Court of Appeals that Pence should be required to disclose the white paper attached to Hodge’s email.

If you’re like me, your first instinct is probably to silent scream. After all, Pence called Hillary Clinton the most crooked politician since Nixon due to her apparently nefarious refusal to turn over emails. And now that he is himself refusing to turn over emails, it’s enough to make you want to swan-dive headfirst into a volcano.

“What’s evident from all of the revelations over the last several weeks is that Hillary Clinton operated in such a way to keep her emails, and particularly her interactions while Secretary of State with the Clinton Foundation, out of the public reach, out of public accountability.”

That’s what Mike Pence said in an interview with NBC News in September.

He also said that the revelation about Clinton’s emails “truly does disqualify her from serving as president of the United States.”

And now look at him: trying to hide documents from the public when he accused Clinton of the same.

Sure, the situations are somewhat different: Clinton’s use of a private email server led to an FBI investigation. Pence is simply trying to avoid a public records request. No law enforcement is involved in Pence’s case.

But the public has a right to know what money is being spent in their name and the justifications for that spending.

The government—both federal and state—is accountable to taxpayers, especially when it comes to its expenditures. If Pence decided to join Texas in suing the government over Obama’s immigration policy, Hoosiers have a right to know why and how much it’s going to cost them.

But transparency doesn’t seem to be Pence’s thing. Nor, for that matter, is it Trump’s thing.

After all, for the first time in history, we have a president-elect who refused to even turn over his taxes. This, combined with Pence’s refusal to turn over documents to William Groth, just might be a harbinger of the lack of transparency we’re about to see in the next four years.