I have pushed back on the Biden Administration Covid-19 immunization mandates.
On September 9, 2021, President Biden issued two executive orders and a directive to the Occupational Safety and Health Administration (OSHA) mandating COVID-19 immunizations. The first executive Order required federal employees to be vaccinated. The second executive order directed federal contractors to require their employees to be vaccinated. The President also directed OSHA to prepare an Emergency Temporary Standard (ETS) mandating that all employers with 100 or more employees require all employees to be vaccinated.
On September 24, 2021, the President’s Task force assigned to the Federal Contractors Executive Order issued its, “Guidance for Federal Contractors and Subcontractors.
On November 4, 2021, OSHA issued its 154-page ETS (rule) mandating that all employers with 100 or more employees require all employees to be vaccinated.
On November 4, 2021, the Centers for Medicare and Medicaid Services (CMS) issued its mandate requiring vaccinations for all health care workers at facilities participating in Medicare and Medicaid CMS issued its Interim Final Rule and implemented the mandate the next day, November 5, 2021.
Idaho joined three lawsuits challenging the Mandates.
I filed lawsuits against one of the executive orders, the ETS issued by OSHA, and the mandate issued by CMS. The claims in each of these cases is not based upon the policy choices of the Biden Administration, but rather whether the federal government has the authority to issue these mandates. All three lawsuits have resulted in nationwide stays of the Biden Administration actions. I did not file these lawsuits in Idaho because I did not want the Ninth Circuit Court of Appeals to have jurisdiction over Idaho’s case. In addition, it is not appropriate to join multiple cases on the same mandate. So, I chose one case on each mandate and joined with other states to file lawsuits there.
2. The Federal Contractors Executive Order is stayed. On October 29, 2021, I joined Idaho with the states of Georgia, Alabama, Kansas, South Carolina, Utah and West Virginia challenging Executive Order 14042 mandating vaccination of all employees of federal contractors. In part, this is based on the fact that Idaho universities are federal contractors and that mandating immunization has a direct affect on state entities and budgets. This case was filed in the United States District Court for Southern District of Georgia.
On December 7, 2021, the federal district court in Georgia issued a nationwide stay enjoining implementation of Executive Order 14042 until further action by the court. That does not yet mean we have won the case, but it is a good sign. However, we still have a long way to go.
3. The OSHA Emergency Temporary Standard (ETS) is stayed, the stay is lifted and appealed to the U.S. Supreme Court. The Court imposed a stay. On November 5, 2021, I joined Idaho with the states of Kentucky, Kansas, Ohio, Oklahoma, Tennessee, and West Virginia challenging the OSHA ETS mandating vaccinations for all employees of employers with 100 or more employees. This case was filed in the United States Court of Appeals for the Sixth Circuit.
On November 12, 2021, in a similar case filed by another group of states, the United States Court of Appeals for the Fifth Circuit issued a nationwide stay prohibiting the implementation of the OSHA ETS until further review by the court.
On November 17, 2021, the Sixth Circuit Court of Appeals lifted the stay. Idaho and a number of other states appealed to the United States Supreme Court and asked the Court to reimpose the stay.
On January 13, 2022, the United States Supreme Court granted our request, reimposed a stay and said, "Applicants [the states] are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate."
4. The CMS mandate is stayed and appealed to the United States Supreme Court. The Court denied the request for a stay.
On November 15, 2021, I joined Idaho with the states of Louisiana, Montana, Arizona, Alabama, Georgia, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky and Ohio in challenging the CMS mandate requiring the vaccination of all health care workers in facilities that participate in Medicare or Medicaid. That case was filed in the United States District Court for the Western District of Louisiana.
On November 30, 2021, the federal district court issued a preliminary injunction staying implementation of the CMS mandate.
On December 15, 2021, the Fifth Circuit Court of Appeals denied CMS’s request for a stay of the District Court order. Therefore, the District Court Order staying the CMS rule remains in effect in the named states.
On December 14, 2022, the United States Supreme Court issued an opinion denying the stay on the CMS rule.
5. Why didn’t I file a lawsuit challenging the federal employee mandated vaccinations?
I did not file an action against executive order mandating the vaccination of all federal because the state does not have standing to file a lawsuit interfering with the federal employer/employee relationship. It is difficult, if not impossible, to envision an injury or harm to the state of Idaho itself (rather than to the federal employees themselves) that would rise to a level sufficient to give the state of Idaho standing to sue on this issue. I am not aware of any state that has filed a lawsuit challenging this executive order. Most people would agree, that if the President has any power, it includes the power to direct the actions of federal employees. Again, this is not about whether I agree or disagree with the President’s policy choices or actions regarding federal employees, but rather whether the state has the power and authority to interfere between the federal government and its employees.
6. The Rule of Law prohibited my usurping the Governor’s authority concerning COVID-19.
The Rule of Law requires me to uphold the law as it is written and not as someone may wish it were written. I do not have the legal authority to countermand the Governor's actions. At the start of the COVID-19 pandemic, the Governor requested legal advice. As required by law, through my office, I provided that advice. I cannot disclose the specific advice I gave the Governor because it is protected by Attorney Client privilege. However, I can talk about the law itself and do so below.
A. The States Reserved the Police Power.
The 10th Amendment to the United States Constitution recognizes that some powers are granted to the federal government and that other powers are reserved to the states respectively or to the people. One of the powers not granted to the federal government, but rather reserved to the states is the police power. Smith v. Turner, 48 U.S. 283 (1849). The police power is the power to protect the health, safety, welfare within morals and general of the people and must fit within constitutional limits. Black’s Law Dictionary (5th ed.).
B. The Idaho Constitution.
The Idaho Constitution provides that the Governor is both the commander-in-chief and holds the supreme executive power of the state. Idaho Const. Art. IV, Sec. 4, and Sec. 5.
C. Idaho Statutes.
Among other things, Idaho Code § 46-601, as it existed in the early stages of COVID-19 but has since been repealed, gave the governor all the police power of the state during an emergency and authorized him to issue and enforce rules he deemed necessary to protect life and property and gave the governor additional authority during an extreme emergency.
Among other things, Idaho Code § 46-1008, as it existed in the early stages of COVID-19 but has since been amended, gave the Governor the authority to issue executive orders declaring an emergency for 30 days and renewing that declaration for 30 days.
Among other things, Idaho Code § 56-1003 as it existed in the early stages of COVID-19 but has since been amended, gave the director of the Department of Health and Welfare authority to impose orders of isolation and quarantine to protect the public from the spread of infectious diseases.
D. The United States Supreme Court.
In 1902, the United States Supreme Court held that state quarantine laws are an exercise of police power and do not offend the United States Constitution. Campagnie Francaise de Navigation a Vapeur v. Louisiana, 186 U.S. 380 (1902).
In 2020, the United States Supreme Court allowed as constitutional California Governor Newsome’s COVI-19 Executive Order limiting attendance at places of worship to a maximum of 100 people or 25% of building capacity. South Bay Pentecostal Church v. Newsome, 590 U.S. ___ (2020).
E. The Rule of Law.
The Rule of Law required me to properly inform the Governor of the law concerning his authority as it is and not as some people thought it should be. I don’t get to make up the law. The Rule of Law also required me to respect the choices made by the Governor as he exercised his statutory authority. I don’t get to usurp or undermine the Governor’s authority. The Rule of Law requires me to defend the Governor in court which we did in federal district court in Herndon v. Little. In that case, the plaintiff challenged Governor Little’s “stay at home” executive order. Judge David Nye determined that because the Governor’s order had been voluntarily ended the matter was moot and the judge dismissed the case without prejudice. Herndon v. Little, 1:20-CV-00205 DCN.
7. The Rule of Law prohibited me from usurping the authority of health districts and school districts during COVID-19.
Under Idaho law, the Attorney General does not oversee, represent or give advice to health districts or school districts. Idaho Code. 67-1401. Instead, the Health Districts are created by Title 39, Chapter 4, Idaho Code and have independent authority to prescribe rules and quarantine. (Idaho Code §§ 39-311, 39-413, and 39-415).
School districts are created by Title 33, Chapter 3, Idaho Code and have independent authority to make rules consistent with state law and employ their own counsel. Idaho Code § 33-506.
The Rule of Law precludes me from usurping the authority of health districts and school boards. Neither entity falls within the authority of the Attorney General and consistent with the Rule of Law, there is no state cause of action against the health districts or school districts.
8. The Rule of Law has guided my actions to prohibit the Biden Administration’s Covid-19 mandates. As mentioned above, to date I have brought three (3) lawsuits against the Biden Administration concerning the issue of COVID-19. These actions have been pursued to sustain the Rule of Law in challenging the authority of the federal government.
9. The Rule of Law dictates whether I join other Republican Attorneys General in all issues.
As I have discussed above, as the Attorney General, I am elected to represent the state of Idaho and its officers. The decision to join my fellow Republican Attorneys General is based on whether my client has a sustainable cause of action. Each state is different and has different laws. Sometimes Idaho has a cause of action similar to other states and in those instances, we may join with other stares in bringing a lawsuit or we may file our own.
If Idaho’s interests are different from other states’, we may choose not to file a lawsuit or we may take a different action entirely or no action at all. It simply depends on the facts and the applicable law which is the result required by the Rule of Law. What I do not do, is make legal decisions in order to get my face in the newspaper or on Fox News. To do so, would not be applying the Rule of Law but rather the rule of whim serving myself rather than the people of Idaho. Lawsuits are about the law not about popular political issues.
10. The Rule of Law dictated why didn’t I join in Texas v. Pennsylvania as a U.S. Supreme Court original action.
I didn’t join in Texas v. Pennsylvania because the case was contrary to the United States Constitution. I stood nearly alone to protect the sovereignty of Idaho and to prevent California from being able to sue Idaho.
One of the most important parts of any lawsuit is to determine the question being asked. Some people thought the question being asked was whether the 2020 presidential elections were valid in Pennsylvania, Georgia, Wisconsin and Michigan. But, all nine members of the United States Supreme Court, including the three appointed by President Trump, held that Texas did not have standing and could not identify a legally protected interest in the way those states conducted their elections. Therefore, Texas could not pursue its case against them. The Court said that the question presented was not the validity of the election, but rather whether one sovereign state could sue another sovereign state over the defendant state’s exercise of its sovereign power to conduct its own elections. The answer to that question is no.
First, my most serious concern was the fact that the Texas lawsuit undermined the constitutional principle of federalism and would give California and other liberal states the power to sue Idaho and violate our sovereignty.
The Texas case was docketed in the U.S. Supreme Court on December 8, 2021. It included 92 pages including a motion, a brief and a complaint. The state of Missouri also prepared a 23- page amicus brief. That’s 115 pages of legal reading. On December 10, 2021, within less than 48 hours of Texas filing its lawsuit, I issued the following press statement:
(Boise) – The following is a statement from Idaho Attorney General Lawrence Wasden on Texas’ recent action before the U.S. Supreme Court.
“I’ve spent substantial time reviewing Texas’s Bill of Complaint so I could fully understand and consider the legal arguments being made. After doing so, I am declining to join this effort.
“As I have done since the day I took my oath of office – in which I pledged to uphold and protect both the Idaho and U.S. constitutions – I strive to protect the State of Idaho’s legal interests. As is sometimes the case, the legally correct decision may not be the politically convenient decision. But my responsibility is to the State of Idaho and the rule of law.
“This decision is necessary to protect Idaho’s sovereignty. As Attorney General, I have significant concerns about supporting a legal argument that could result in other states litigating against legal decisions made by Idaho’s legislature and governor. Idaho is a sovereign state and should be free to govern itself without interference from any other state. Likewise, Idaho should respect the sovereignty of its sister states.”
I could not support a lawsuit that violated the constitutional principles of federalism and state sovereignty. If Texas v. Pennsylvania been allowed to stand, the natural outcome would have allowed Washington, California or New York to sue us. Don’t you think Washington would love to sue us over COVID-19? They already believe our citizens are filling Washington hospitals. Don’t you think California would love to sue us over the Fairness in Sports Act or New York would love to sue us over the Second Amendment? Some people have simply not thought through the legal precedent and negative outcomes that would have been set by Texas v. Pennsylvania.
Although the word “federalism” does not appear in the U.S. Constitution, federalism is one of the basic legal concepts that forms our Constitution. Federalism means, not only that we have dual sovereign national and state governments but, each state is independent of the other states. Justice Hugo Black wrote that “our” federalism is based on our belief that, “the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. Younger v. Harris 401, U.S. 37, 44 (1971). (Emphasis added).
On the basis of the Rule of Law, I stood nearly alone, as an elected Republican Attorney General to defend the sovereignty of Idaho and the constitutional principle of federalism.
Second, Texas filed this as an “original” action in the U.S. Supreme Court. Among other things, the Supreme Court’s “original” jurisdiction is limited to, “those in which a State shall be Party.” U.S. Const. Art. III, Sec. 2. Typically, the Court is an Appellate Court (a court that hears appeals of cases tried in a lower court), but on rare occasions, the court exercises “original” jurisdiction which means the case is first filed and then tried in the Supreme Court. In such circumstances, the Court may assign a Special Master to conduct the trial portion of the case. The Court declined to accept the case.
Third, although the case was one state versus another – not against the federal government, that is not the end of the question. In order to be able to sue, the plaintiff (the claiming party – in this case, Texas) must have standing. Standing means that the plaintiff must have suffered an injury-in-fact. In other words, an injury that is concrete and particularized, and an actual or imminent invasion of a legally protected interest. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). In this instance, The Court said that Texas did not have standing and could not pursue its case because, “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” Texas v. Pennsylvania, 592 U.S. ___ (2020).
In other words, the Court did not and will not recognize Texas’ interest in the way other states conduct their elections and, therefore Texas did not have standing. In addition, if the Court does not recognize an interest, it is not a legally protected interest and, therefore, Texas did not have standing.
Fourth, my duty is to uphold the Constitution as it is written, not as others think it should be written. Some people were very angry (and pretty vicious) because I was the only elected Republican Attorney General that declined to sign on and support Texas. (The Wyoming Attorney General, Bridget Hill, also declined to sign on. She was the only appointed Republican Attorney General that declined to sign. So, the two of us stood together.) Some people fail to realize that courts are not the place to make policy choices and political statements. Instead, courts are the place to make legal decisions. That is the constitutional principle of separation of powers in action. As shown by the unanimous United States Supreme Court, I made the correct legal decision and was compelled to do so by the Rule of Law.
Fifth, there have been a number of aggressive, harsh and sometimes vulgar criticisms cast my way and perhaps below I can respond to some of those criticisms.
a. You should have joined Texas to show solidarity with other Republican AG’s.
The Court doesn’t count noses except for the nine noses on the Court. In this instance, all nine noses agreed with me. Counting noses is for policy making bodies. Court decisions are to be based on the law not on how many people believe one thing and how many believe something else.
b. What about other state AG’s? Why did they join, and Idaho didn’t?
I don’t answer for other AG’s. They made their own decisions. Some of those same AG’s have privately acknowledged to me that they made the wrong decision and made it for political reasons. My duty is to defend the Constitution and the state of Idaho. I did that.
c. You didn’t represent me.
I represent 1.8 million people, as a whole, not individuals or groups of individuals.
d. I’ve heard you make that argument before.
This isn’t just an argument. It’s the law. My decisions are based on the law not on how many people believe one thing or how many believe something else.
e. You’ve shown your true colors. You’re a RINO.
If I’m falsely branded a RINO for keeping my oath of office and upholding the Constitution, so be it. RINO’s come in two flavors. Democrats that falsely claim to be Republicans and Libertarians that falsely claim to be Republicans. I am neither. I am just a plain Republican.
f. You should have joined because you represent the state and the Republican party.
By law, I represent the state. I do not legally represent the Republican Party, the Democrat Party or any other Party.
g. You are confused.
It’s hard to argue that I am confused when the U.S. Supreme Court unanimously agreed with me. If I’m confused, I’m in good company.
h. You are controlled by China.
It’s hard to argue that I am controlled by China when I have no Chinese connections and a unanimous U.S. Supreme Court agreed with me.
i. President Trump is going to win this case. You should be on the right side of history.
President Trump didn’t win this case. I am on the right side of the law. Whether I am on the right side of history remains to be seen. More importantly, the policy choice of being on the right side of history is not a proper consideration in choosing the Rule of Law.
j. You are supposed to support President Trump.
My oath of office is to support and defend the Constitution and the law not an individual.
k. You are not stepping up and defending the Constitution. You are letting socialists control the country.
In a very lonely fashion, I stood up for and defended the Constitution. I am not letting socialists control this country. That is a choice made by voters, not by me.
l. I’m not going to vote for you. We’re going to throw you out of office.
That is your right under the very Constitution I have taken a public and political beating to defend. My choice is based on the law not whether you will or will not vote for me. My oath of office is to defend the Constitution not to seek your vote.
m. Many harsh, threatening and vulgar comments.
You have a 1st Amendment Right. But that doesn’t make you correct or civil. Is that how people should behave? Is that how real Republicans behave? My mother said she would wash my mouth out with soap if I repeated the harsh, threatening and vulgar comments. Going along with everyone else was the easy way. Standing alone to defend the Constitution was the hard way. But it was the right way. I sustained the Rule of Law.
n. You’re a coward and don’t have the courage to be Attorney General.
You and I have very different understandings of the word “courage.” Being a sheep and just following the crowd, does not require courage. Standing alone and defending the Constitution does. Courage means, “ mental or moral strength to venture, persevere, and withstand, danger, fear or difficulty.” (Webster’s New Collegiate Dictionary). I have done that. Abraham Lincoln said, “Be sure to put your feet in the right place, then stand firm.” I have done that.
o. The Governor, the Congressional Delegation, Chairman Luna and many others joined various amici (the plural of amicus) briefs. What about that?
I don’t answer for them. They made their own choices. I am not offended by their joining, nor are we at odds. I urged those who contacted me to join an amicus brief. But I explained that there is a BIG difference between their joining and the STATE’s joining. They do not represent the state of Idaho. I do. The state’s joining would have squarely raised the core issue of whether one sovereign state can sue another sovereign state because of that state’s exercise of its sovereign power. That’s the difference. I upheld the Rule of Law.
p. My response.
My response to each of these criticisms is that I was compelled by and followed the Rule of Law in choosing to stand up for the Constitution and the sovereignty of Idaho.
11. The Rule of Law dictates why I will not join Mike Lindell’s proposed lawsuit.
Mr. Mike Lindell has called on his followers to inundate Attorney General offices with demands to join his lawsuit. In its most basic form, his proposed lawsuit has two elements. First, it is a re-run of Texas v. Pennsylvania with some new facts added. Second, it includes allegations against the President and U.S. Attorney General for failing to do their jobs.
A. The Lindell lawsuit is a re-run of Texas v. Pennsylvania with some new facts added, and, therefore, Idaho does not have standing to sue.
The proposed Lindell proposed lawsuit, names the states of Arizona, Georgia, Michigan, Pennsylvania and Wisconsin as defendants. Its allegations concern the 2020 presidential elections held in those states and includes facts that were allegedly discovered or occurred after the U.S. Supreme Court decided Texas v. Pennsylvania. Mr. Lindell asks attorneys general around the country to join their respective states as plaintiffs in his lawsuit.
On one recent occasion, a follower of Mr. Lindell was quite upset with me and boisterously claimed that the “new facts” gave all 50 states standing to sue. That is simply not true. As mentioned, the “new facts” are facts that were allegedly discovered or came into existence after Texas v. Pennsylvania was decided. However, those “new facts” do not confer standing and are not relevant to standing.
The only facts relevant to standing are: (1) Idaho is a state; (2) Arizona, Georgia, Michigan, Pennsylvania and Wisconsin are states; and (3) The Lindell lawsuit is about the 2020 presidential elections that occurred in those states. If those three things are true (and they are), then Idaho (and all other states) do not have standing to sue. That is because the U.S. Supreme Court said so.
In Texas v. Pennsylvania the court said that Texas did not have standing and that, “Texas ha[d] not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” Texas at ___.
To have standing the plaintiff (the claiming party) must have suffered an injury-in-fact. In other words, an injury that is concrete and particularized, and an actual or imminent invasion of a legally protected interest. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) Emphasis added.
What this all means is that Idaho does not have a judicially recognized interest in other states’ elections. Also, when the Court does not recognize an interest, it is not a legally protected interest. Therefore, Idaho does not have standing to sue those states over their elections. The “new” facts do not confer standing. Under the Rule of Law, it is improper to join the Lindell lawsuit and joining such a lawsuit could subject Idaho to sanctions.
B. The Lindell lawsuit makes allegations against President Trump.
In his proposed lawsuit, Mr. Lindell alleges that the United States President, Vice President, Attorney General, Speaker of the House and the President Pro Tempore of the Senate failed in their respective duties to assure proper election in the named states. Donald Trump was the President at the time these elections took place. Therefore, Mr. Lindell alleges that President Donald Trump failed in his duty. Essentially then, this lawsuit alleges that because President Donald trump failed in his duty, he should be reinstated as the President. That is simply nonsensical.
12. The Rule of Law dictates the way in which I stand up for “Conservative” values.
There is much bantering about of the term “conservative.” Some people use it to describe a person that favors lower taxes, free enterprise, private ownership, strong national defense, individual responsibility, socially traditional ideas and limited government. That is the use I favor. Others, however, use the term to describe a person with more Libertarian views.
As I’ve mentioned previously, as Attorney General, I do not represent liberals, moderates, conservatives, Democrats, Republicans, Libertarians or any other political viewpoint. My responsibility is to uphold the law.
I stand up for “conservative” values when I fulfill my oath of office and defend the U.S. and Idaho Constitutions and follow the Rule of Law in performing my duties. My continually calling legal balls and strikes fairly and squarely is a conservative value. Conservative’s actually believe in the Constitution as it is written and not as some believe it should be written.
13. The Rule of Law dictates my actions in the matter with the Lt. Governor concerning public records.
The Lt. Governor created a task force.
In April 2021, the Lt. Governor issued a press release announcing her creating an Education Task Force. Initially the Lt. Governor asked one state legislator to serve on the task force but did not identify other members until sometime later. As required by law, the Attorney General provided legal advice to the Lt. Governor concerning her task force. Idaho Code § 67-1401. That legal advice is protected by attorney client privilege that can be waived by the client but not by the attorney. Idaho Code § 9-203, IRPC 1.6, IRE 502.
We advised the Lt. Governor.
We gave some advice to the Lt. Governor during the early stages of the task force, before the makeup of the committee was known. On June 7, 2021, we advised her to immediately produce records in response to a number of reporters’ public records requests under Idaho Code § 74-103. (I can now talk about this issue because she waived attorney client privilege concerning this part of the advice, we gave her.) She was not satisfied with our advice and we told her she could seek an outside attorney, which I authorized in accordance with Idaho law. Idaho Code § 67-1406.
The Lt. Governor selected outside legal counsel.
After selecting outside legal counsel, she continued to refuse to disclose the requested public records. On July 19, 2021, six weeks after our last advice to her on the matter and after she had selected outside counsel, the Idaho Press Club sued the Lt. Governor for her failure to produce the records. At the trial, the Lt. Governor through her outside counsel and her chief of staff attempted to justify her refusal to disclose the public records by arguing, among other things, public records exemptions for trade secrets, executive privilege, fish and game licenses, and investigations by the Human Rights Commission. The court said that the exemptions argued, “were so irrelevant” that the Lt. Governor, “may have blindly selected them at random.”
The Lt. Governor lost her lawsuit.
The Lt. Governor lost the lawsuit and the court found that she had unlawfully failed to disclose the documents, her arguments were frivolous and she had acted in bad faith. The court ordered her to produce the records, pay a $750 civil penalty, and pay approximately $29,000 in attorney fees to the Idaho press Club.
The Lt. Governor produced the public records after being threatened with contempt.
None-the-less, the Lt. Governor continued to refuse to produce the records and several weeks later asked the court to reconsider its order. At that point, the Idaho Press Club asked the court to hold the Lt. Governor in contempt for her failure to comply with the court’s order and to put her in jail until she produced the records. The next day, the judge denied the Lt. Governor’s request for reconsideration and then, finally, the Lt. Governor produced the public records. The Idaho Press Club then dropped its request for contempt.
The Lt. Governor requested a $50,000 supplemental budget increase to pay attorney fees and blamed the Attorney General.
After that, Lt. Governor made a request to the Department of Financial Management (DFM) for a supplemental budget increase of $50,000 for what she described as, “unforeseen legal bills related to a lawsuit from the Idaho Press Club after the Attorney General’s Office failed to properly represent the Office of the Lt. Governor.” She continued by claiming that the, “Office of the Lt. Governor was forced to find outside counsel following the abrupt termination of counsel and advice from the Attorney General’s office after almost two months.” The supplemental budget request included the attorney fees she was ordered to pay to the Idaho Press Club and additional money to pay her outside attorney.
The Lt. Governor produced a redacted copy of her contract with outside counsel but could not locate any of the attorney’s bills to her.
The Idaho Capital Sun made separate public records requests for copies of the contract with her outside counsel and the bills or invoices from her outside counsel. She responded by producing a heavily redacted (blacked out) copy of her contract with Colton Boyles, the lawyer who advised and represented her in her failed court case. (At that time, Mr. Boyles was running to be the Attorney General but has since withdrawn.)
Everything on the contract was blacked out except for the lawyer’s $250 hourly rate and his paralegal’s hourly rate of $120. In response to the request for the outside lawyer’s bills, the Lt. Governor’s office said that, “after a diligent search, [they] were unable to find any invoices.”
The Lt. Governor held a “press conference” and blamed the Attorney General for her loss in court and blamed the media for misrepresenting her.
On October 14, 2021, the Lt. Governor held a press conference on an auditorium stage at a public elementary school in Ammon. She now had a different attorney with her who said that he was representing her pro bono (for free). It just so happens, that he too is running to be Attorney General. He said that the press would not be allowed to ask questions at the “press conference.” He then made a political speech condemning me as the Attorney General for “bad lawyering” by giving the Lt. Governor bad advice, refusing to stand by that advice, referring her to outside counsel and refusing to represent her in court. He then said that when he becomes the Attorney General that, “our conservative elected officials will finally have a true defender in office.”
The Lt. Governor then spoke and claimed the Attorney General had given her bad legal advice, would no longer defend that advice and had invited her to seek outside counsel. She held up a piece of paper she said was a June 7th email from the Attorney General to her outlining her claims and then referred all questions to the Attorney General. She also said that her subsequent legal counsel followed the arguments laid out by the Attorney General and that is why she lost her court case.
She then criticized the media claiming they had wrongfully reported that she had been held in contempt of court. She specifically named the Lewiston Tribune, KTVB, East Idaho News, the Idaho Statesman and the Associated Press. She also chastised reporters Bryan Clark and Nicole Blanchard for news articles they had written. She then snapped her notebook closed and she and her attorney left the stage.
The Attorney General responded to the Lt. Governor’s “press conference.”
In response to the false allegations made at her “press conference” by both the Lt. Governor and her pro bono counsel, I issued the following press statement:
The Office of the Attorney General offered its final legal counsel on this matter to the lieutenant governor on June 7, 2021. Following that communication, the lieutenant governor made an independent decision to seek outside representation. Then – approximately six weeks after our final counsel – the Idaho Press Club filed its lawsuit.
“Attorney client privilege precludes us from discussing the specifics of our counsel at this point. However, the lawsuit, the lieutenant governor’s loss in court and the subsequent financial burden Idaho taxpayers now face all resulted from independent decisions made by the lieutenant governor in consultation with her chosen attorney after June 7.
“This entire matter is an excellent demonstration of why government should seek legal counsel that it needs to hear instead of what it wants to hear.”
The Lt. Governor initially declined to produce an email she had waived around during her “press conference”.
As she was leaving, members of the media asked her for a copy of the paper she had displayed. She told them to make a public records request. Her attorney said the letter was subject to attorney client privilege.
The Lt. Governor waived attorney client privilege with regard to the email and produced it to the media. The email did not sustain her claims.
After a few days, (approximately October 18th), the Lt. Governor waived her attorney client privilege by disclosing the piece of paper she had displayed at the “press conference.” It was, indeed, a June 7th, email from a Deputy Attorney General to the Lt. Governor’s chief of staff. However, it did not sustain the Lt. Governor’s claims against the Attorney General. Instead, it was completely opposite to her claims. The email, in its entirety follows:
Based on the “press conference,” email, and subsequent events there are at least seven points to consider.
The “press conference,” email, and subsequent events disclose:
A. The only exemption from disclosing the complete set of requested documents was found in Idaho Code § 74-106(4)(h) which provides for the names of juveniles to be redacted and their initials used instead. There was no other applicable exemption. As we advised the Lt. Governor, the documents should have been disclosed immediately.
B. Our prior discussions with the Lt. Governor concerning an exemption were no longer applicable because the members of the task force did not meet the criteria for the legislative exemption.
That exemption is contained in Idaho Code § 74-109(3) and exempts personally identifying information relating to a private citizen that is in a writing to or from a legislator. In the early stages of the formation of the task force the identified members were legislators and we appropriately discussed this issue. Later, it was apparent that this exemption did not apply and we said so.
C. We recommended that she produce the requested documents as soon as possible and gave a deadline of no later than the end of business the next day. She did not follow our advice.
D. We allowed, but did not force, the Lt. Governor to seek outside counsel. We were aware of her displeasure, but fully realized it was her choice. We did not terminate our representation abruptly or otherwise. We did not refuse to represent her in court. We stood ready to provide legal advice and court representation at all times and we fully cooperated with her chosen counsel. She chose to not follow our advice.
E. Although she claimed her subsequent attorney followed the advice of the Attorney General, that is not so. It is clear that we recommended her immediate disclosure of the requested documents, but she did not do so.
It is also clear her attorney made unsustainable arguments in court that were not, in any way, attributable to the Attorney General. Specifically, in footnote 6 of the case decision, the court discloses the Lt. Governor raised new arguments at oral argument that were not raised in the original denials. In other words, her subsequent attorney did not follow the legal guidance of the Attorney General.
Further, it would have been malpractice for her subsequent attorney to blindly follow the advice of a previous attorney. Each attorney is responsible for exercising independent professional judgement. In this case, that independent exercise of professional judgement resulted in the Lt. Governor’s losing the lawsuit.
F. Our advice to the Lt. Governor to immediately produce the requested records came on June 7, 2021, six weeks before the Idaho Press Club filed its lawsuit. The Lt. Governor was advised by her outside legal counsel and made her own legal choices outside the influence of the Attorney General. There was plenty of time and opportunity for her to make the correct choices, but she did not do so.
Despite her feeble attempts to blame the Attorney General and the media, it is her own legal choices including her selection of outside counsel and her unwillingness to follow the law that led to her loss in court. By law, she is required to pay the civil penalty herself, However, she saddled Idaho taxpayers with paying attorney fees to the Idaho Press Club and the fees she paid her outside counsel.
Government should seek legal advice it needs to know, rather than what it wants to hear. I have a twenty-year track record of providing legal advice that adheres to the Rule of Law.
G. Idaho Code § 74-604(2) provides, “Neither a public entity nor any of its employees shall, use, nor shall a public official authorize or use, public property or resources to advocate for or against a candidate or ballot measure.” Idaho Code § 74-606 imposed the duty on the Attorney General to enforce the civil penalty for violating this provision.
Because the Lt. Governor used a public school for her “press conference” and her pro bona counsel made a patently political speech for his own election, as Attorney General, I was required to examine this issue and determine whether the Lt. Governor or her pro bono had violated the law.
A careful review of the “press conference” disclosed that although, the pro bono attorney’s speech was political in nature, neither the Lt. Governor nor her pro bono counsel had violated this provision. It is worth wondering whether the Lt. Governor or her pro bono counsel were aware of or considered the risk associated with using a public school for their “press conference.”
1. The Rule of Law dictates my interactions with the legislature.
Many members of the legislature genuinely appreciate my being the Attorney General, in part, because I am willing to provide them unvarnished legal advice and representation. They are wise enough to realize that objective legal advice is to their advantage, even if the specific advice is not to their liking.
It is no secret, however, that some members of the legislature are angry at me as the Attorney General. That is because I believe in the Rule of Law and have the courage and professionalism to tell them what they need to know, rather than what they want to hear. Sometimes they think that I should be their cheerleader and advance their every cause. They falsely claim that I am not a “conservative” or a “patriot” or that I am a “RINO”.
The Attorney General doesn’t represent liberals, conservatives, moderates, Democrats, Republicans, Libertarians or any other political viewpoint. The Attorney General takes an oath to uphold the U.S. and Idaho Constitutions and to faithfully execute his duties under the law.
That means that I am not a cheerleader for every cause, that comes down the pike. I do not wrap myself in the clothing of conservatism and then proclaim that I am a patriot. I am a conservative and a patriot by sustaining the Constitution I have taken an oath to uphold and applying the law as it is written, not how someone wishes it were written. That is the difference between me and my opponents. They both profess their “conservatism” as a way of promoting themselves.
I, on the other hand, will continue to abide by the Rule of Law. It is the Rule of Law that dictates my relationship with the legislature and the rest of state government. It is critical that we have an Attorney General willing to uphold the Rule of Law rather than serve himself and his politically like-minded compatriots. Our adherence to The Rule of Law is what separates us from the rest of the world and defends our freedom.