Rewire has obtained a political white paper that Vice President Mike Pence has spent more than two years fighting to keep secret.
This white paper details legal strategy shared with Republican governors in a 2014 email about the best way to challenge former President Barack Obama’s order to provide temporary deportation relief to certain undocumented immigrants. The paper has become a matter of public fascination, as it is the subject of a separate lawsuit filed against Pence in December 2014, when he was governor of Indiana.
The document focuses on what Republicans then claimed vociferously to be executive overreach by the Obama administration, a use of executive authority they now appear to at least tacitly support as employed by the Trump administration in its sweeping ban on immigrants from Muslim-majority countries. Trump’s revised order is set to come into effect early Thursday unless legal challenges prevail before then.
The original lawsuit against Obama, initiated by Texas in November 2014, sought to undo Obama’s executive action. This action would have allowed more undocumented immigrants to obtain temporary work authorization to remain in the United States, by expanding the president’s Deferred Action for Childhood Arrivals program to apply to individuals who came to the United States before 2010 and before they turned 16. The Obama administration also expanded deferred action to apply to adults who had lived in the United States for at least five years and who are parents of U.S. citizens or lawful residents.
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The 26 states challenged Obama’s rule changes, in part on the grounds that they amounted to an abuse of executive authority. In June 2016, the U.S. Supreme Court deadlocked in the case over Obama’s immigration plan, effectively upholding the appeals court’s decision that the plan was unconstitutional.
In an email dated November 25, 2014, Daniel Hodge, the chief of staff of Texas’ then-Attorney General Greg Abbott, wrote to governors in nearly 30 other states, seeking to drum up support for the lawsuit. (Abbott is now Texas’ governor.) “Our hope is that other states will join the State of Texas’ legal action so that we will have a broad coalition to challenge the President’s action—just as we did when 26 states banded together to challenge ObamaCare,” Hodge wrote. “[B]ecause some Governors indicated last week that their Attorneys General may not elect to join our legal challenge, Gov-Elect Abbott asked that I share this white paper with your office so that Governors whose AGs decline to join the case may do so on behalf of their states.”
Indiana did indeed join in suing the federal government over Obama’s executive action, but the state’s attorney general refused to represent the state in this lawsuit. So, Pence hired a private law firm on the taxpayers’ dime.
Curious about how much this was costing Hoosiers, Indiana citizen William Groth filed a public records request, seeking financial records and communications related to Indiana’s role in the case against the Obama administration.
But Pence refused to release some of the records, including the white paper sent by Texas’ Hodge.
So Groth filed a lawsuit.
In defending his refusal to release the white paper, Pence argued that his decision to disclose or not disclose certain records should not be subject to review by the courts, essentially calling for less transparency at the state executive level. This action concerned open-government advocates, who wonder if Vice President Pence will continue this trend away from transparency in what already appears to many to be an opaque Trump White House.
“That really to me makes a very clear statement that an administration is not transparent—it doesn’t even want the courts to be able to review its decisions on public-information-disclosure issues,” said Indiana University journalism professor Gerry Lanosga, who has been following Pence’s records lawsuit, in a phone interview with Rewire. “If that were to be upheld by our courts, it would essentially gut the idea of open government in Indiana.”
An appeals court rejected Pence’s argument earlier this year, but ultimately upheld his decision not to disclose the white paper, agreeing with Pence that the document amounted to privileged attorney-client communications. Groth has appealed the decision to the Indiana Supreme Court and is waiting on a response.
Meanwhile, Groth, an attorney in Indianapolis, has spent all this time wondering what Pence is hiding in his emails.
Rewire shared with Groth the white paper, which we obtained by filing records requests to other states who received Hodge’s email. As of publication time, public records officials in Idaho, North Carolina, and Wyoming sent us the white paper. Groth told Rewire in a phone interview he was ultimately surprised that Pence had been hiding what amounts to many of the same legal arguments made in Texas’ challenge to Obama’s immigration order.
“It really is baffling why the governor would choose to fight so hard to keep this document secret after all these years,” Groth said.
But the white paper, drafted by former Texas Deputy Solicitor General Andy Oldham, by itself reveals what immigration legal experts told Rewire are inherent contradictions between the arguments Pence and his fellow governors made in opposing Obama’s executive action, and the arguments Pence and the Trump administration are making in defending Trump’s recently revised Muslim ban.
“The focus of the proposed litigation is not immigration,” Oldham wrote in the white paper. “Rather, it is the scope of executive authority. The unchecked expansion of executive authority wielded by President Obama threatens the constitutional balance of power.”
The Trump administration’s latest immigration-related order places a temporary entry ban on citizens from six Muslim-majority nations (revised from an original seven) as well as a temporary ban on all refugees to the United States. The seven states challenging this order in federal court have argued that in addition to unconstitutionally discriminating against Muslims, the Trump administration’s order amounts to an abuse of executive power—a claim the states that sued Obama over his immigration actions also made, with different arguments.
Rewire provided a copy of the white paper to Melissa Keaney, a staff attorney at the National Immigration Law Center, which has filed a lawsuit challenging the White House’s updated executive order, so Keaney could comment. She noted the hypocrisy of Republican officials who rallied against the use of executive action by Obama, but not against Trump’s Muslim ban.
“My most immediate reaction was the irony in how much they focused the white paper on stating that this is not about immigration, and that the case was really about the scope of executive authority, and how the exercise of that would threaten to forever change our constitutional foundation,” Keaney said. “We have a former governor who sought to have this kept secret who is now in the White House … directing the sorts of executive overreach that so clearly violate fundamental principles of our constitutional system. I think that that should really concern the public.”
Groth told Rewire that he needs to confer with his attorney to figure out how to proceed with his legal challenge. He said that now seeing the white paper, he believes Pence was wrong to keep this document secret.
The white paper “openly is couched as an invitation to other states to join the anticipated Texas lawsuit against Pres. Obama’s humanitarian immigration actions,” Groth said in a follow-up email. “Because the document solicits Indiana’s involvement in that proposed lawsuit, it cannot be protected under the attorney-client exception to our public records law. … Pence has still failed to show there was an attorney-client relationship at the time Texas sent the white paper to him.”
Pence’s attorney in the public records lawsuit, Joseph Chapelle, confirmed with Rewire that the white paper we obtained is the same that is the subject of Groth’s public-records lawsuit.
“Mr. Pence is not the one seeking this appeal and is no longer a party to this lawsuit under court rules,” Chapelle told Rewire in an email. “It is the other party, Mr. Groth, who wants to keep this case alive. This development is yet another reason why the Indiana Supreme Court should not take this case and let it end now.”
Pence’s press secretary, Marc Lotter, did not comment on the matter other than to say via email, “I would remind you that then-Governor Mike Pence’s records are being archived and managed in full compliance with the Indiana Access to Public Records Act.”
In addition to Groth’s lawsuit, Pence is facing scrutiny about his use of a private email account while he was the governor of Indiana.
The Indianapolis Star recently reported that Pence used the account to conduct state business; yet during the presidential election Pence criticized his running mate’s opponent, Hillary Clinton, for her use of a private email server while she was secretary of state.
Professor Lanosga told Rewire that Pence’s record on open government during his term as governor did include pro-transparency actions. Notably, Pence vetoed a bill in 2015 that would have allowed government agencies to charge a fee for public-records searches. But some of Pence’s decisions have concerned transparency advocates.
“We need to figure out which Mike Pence we’re going to get at the federal level,” Lanosga said. “I hope it’s the one who vetoes attempts to make it more difficult to get access to information. I hope it’s not the one that makes it difficult to get information such as these emails.”