The Better Government Association (BGA) filed a lawsuit last week that could create lots of fireworks. The BGA wants to force Governor Rod Blagojevich to release federal grand- jury subpoenas his administration has been served 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 a 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 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. Madigan's 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 may 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. Attorney General Madigan will reportedly not be joining the Better Government Association's lawsuit. Instead, Madigan will likely represent the governor's office in the case.
Madigan is, per the Constitution, the state's chief legal officer, and she therefore has the sole authority to represent any state official or office that is 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 Attorney General Madigan dumped the law firm she had appointed to defend some top Illinois Department of Transportation (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 the subpoenas were "overly broad and burdensome."
Secretary Martin and the other defendants sued, claiming 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 co-defendants had tried to block for months, contending they had an attorney-client privilege. Leahy had advised several state agencies about hiring practices, including IDOT. After Madigan took over the IDOT case, the attorney general concluded 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 them's 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 also publishes Capitol Fax (a daily political newsletter) and (http://www.thecapitolfaxblog.com).