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The Better Government Association filed a lawsuit
last week that could create lots of fireworks. The BGA wants to force Gov.
Rod Blagojevich to release federal grand-jury subpoenas his administration
has been served with between January and July of last year. The BGA initially filed a Freedom of Information Act
request last year to pry loose the subpoenas. The Blagojevich
administration had made it standard practice to disclose subpoenas until
the feds started nosing around the governor’s office itself, about a
year ago; then all cooperation stopped. The administration claimed last week that U.S.
Attorney Patrick Fitzgerald’s office has “asked us not to
discuss or share information about their work, and we’ve honored that
request.” The governor’s lawyers have also claimed to the BGA
and other media outlets that state law does not require the subpoenas to be
released to the public.
Attorney General Lisa Madigan’s office strongly
disagreed with the governor’s point about federal subpoenas’
being exempt from Freedom of Information Act requirements. The office
issued a strongly worded opinion last fall that argued that the governor
must disclose the subpoenas. Also, a simple “request” from a U.S.
attorney to withhold information that is required by state law to be
disclosed is not exactly the firmest of legal grounds. If the U.S. attorney
issued a direct order commanding that disclosure was strictly prohibited
because it would impede a federal investigation, then the governor’s
office might have a case, but a mere “request” can’t
override long-established state law. So far, the governor’s office
has not even disclosed the specific language that U.S. Attorney Fitzgerald
used in his “request,” so we are essentially forced to take the
governor’s people at their word. The governor’s office also argues that Madigan
is being hypocritical because her own investigative division often asks
that subpoenas be kept confidential. However, Madigan’s office says
that even those requests do not outweigh the state’s FOIA laws. Here is where it gets really interesting, though.
Madigan will reportedly not be joining the BGA’s lawsuit. Instead,
Madigan will likely represent the governor’s office in the case. Madigan is, per the Illinois Constitution, the
state’s chief legal officer, and she therefore has the sole authority
to represent any state official or office sued in an official capacity. The
governor’s office can request that the AG appoint a special attorney
general to handle this case, but Madigan will reportedly resist. We got a taste of this sort of thing last fall, when
Madigan dumped the law firm she had appointed to defend some top IDOT
officials, including Transportation Secretary Tim Martin, in a case of
alleged politically motivated firings. Madigan took over the case herself
and began doing things that were pretty obviously not in the
defendants’ best interest but were in what she concluded to be the
state’s best interests as a whole. For instance, Madigan began
negotiations with the plaintiffs in the case to comply with their
subpoenas, which Martin and the other defendants had previously fought
tooth and nail, contending that they were “overly broad and
burdensome.”
Martin and the other defendants sued, claiming that
Madigan had a conflict of interest, but a judge ruled in August that
Madigan, as the state’s chief legal counsel, was “fully
authorized to represent the state in this case.” A couple of months
later, a different judge ordered Springfield attorney Mary Lee Leahy to
give a deposition in the IDOT firing case, which Martin and his
codefendants had tried to block for months, contending that they enjoyed
attorney-client privilege. Leahy had advised several state agencies about
hiring practices, including IDOT. After Madigan took over the IDOT case,
she concluded that there was no attorney-client privilege and didn’t
argue against Leahy’s deposition. The bottom line here is that we will very likely be
treated to the spectacle of Lisa Madigan “defending” Rod
Blagojevich’s office in a FOIA case in which the plaintiffs are using
Madigan’s own opinion to make their arguments that the subpoenas
should be made public.
This may seem a bit upside down and maybe even seem
somewhat unfair to the governor that the lawyer who will represent his
office in this case is so obviously hostile to his personal interests, but
those are the breaks. Attorneys general are supposed to put the interest of
the state first, not act as a personal attorney to whichever agency gets
sued. This could get real ugly real fast if the governor fights back.
Rich Miller
publishes Capitol Fax, a daily political newsletter, and thecapitolfaxblog.com.
This article appears in Jan 4-10, 2007.
