Court Orders Kobach to Produce Voting Document Shared with Trump, Suggests ACLU May Pursue Sanctions Against Kobach

Bryan Lowry in the KC Star:

A federal magistrate judge has ordered Kansas Secretary of State Kris Kobach to disclose documents outlining a strategic plan he presented to President Donald Trump in November, a decision that could have ramifications from Topeka to Washington.

Kobach, who served on Trump’s transition team, was photographed in November holding a stack of papers labeled as a strategic plan for the U.S. Department of Homeland Security. That plan, as revealed by the photograph, included the recommendations that the U.S. block all refugees from Syria and engage in “extreme vetting” of immigrants from countries considered high-risk.

It also contained a reference to voter rolls, which was partially obscured by Kobach’s hand in the photograph….

Judge James O’Hara in Kansas City, Kan., ordered Kobach to share the documents Monday after privately reviewing them earlier in the month. The judge will allow Kobach to redact the documents, but he wholly rejected the Kansas official’s argument that the papers were protected by Trump’s executive privilege and even questioned whether Kobach had met his duty of candor as an attorney in his efforts to prevent the ACLU from reviewing the papers.

O’Hara said that “even adopting defendant’s view that the executive privilege may be asserted by a president over communications made before he takes office, defendant doesn’t address the fact that now-President Trump conspicuously has not asserted the privilege over the photographed document.”

From fn 22 of the order:

22 Defendant stated in his response to the motion to compel that the draft amendment “does not propose to ‘amend or alter’ an [sic] ‘eligibility-assessment procedures mandated by the NVRA.’” ECF No. 288 at 18. Defendant also stated “no such document exists” that shows defendant sought an alternative means of assessing voter qualification by amending the NVRA. Id. at 17. 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.

(Emphasis added).

Ouch!

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