SALEM, Ore. — The Oregon Department of Justice is denying a request that former Gov. John Kitzhaber's lawyers be allowed to review his private emails before they're turned over to federal investigators, according to records released Friday.
Records also show Kitzhaber's lawyers demanded that the state seek a court order barring Willamette Week from publishing material from the governor's private emails, which were leaked to the Portland newspaper. That request also was rejected.
Even before he stepped down last month amid an influence-peddling scandal, Kitzhaber fought hard to protect emails from his private accounts from public disclosure. The emails were archived on state servers, which he says was inadvertent. Before he announced his resignation, a Kitzhaber staffer tried to have them deleted, but technicians refused.
Janet Hoffman, Kitzhaber's criminal defense lawyer, had demanded that the state allow her to remove emails she deems personal or privileged before anyone from the state reviews them for release to federal investigators, a U.S. House committee or the public.
In a letter dated Feb. 27, Deputy Attorney General Fred Boss refuses Hoffman's request. The letter was provided to The Associated Press on Friday in response to a public records request.
"That subpoena and the Federal Rules of Criminal Procedure prevent us from agreeing to your demand," Boss wrote.
He also rejected Hoffman's request to consider Kitzhaber's interactions with governor's office lawyers to be privileged attorney-client communication. The lawyers work for the state and the Office of the Governor, not for the individual holding the office, Boss wrote.
He added that it may be determined that Kitzhaber's communications with his private lawyers can be disclosed to investigators.
The letter indicates Hoffman plans to ask a judge to quash a federal grand jury's subpoena for private emails. Boss says he'll wait until the judge's ruling before anyone from the Justice Department reviews them.
Grand jury proceedings are secret, so it's unclear if Hoffman has filed her request.
"Based upon the ethical guidelines, I'm prohibited from commenting on it," she said.
She expressed irritation with the state's decision to release records to the AP.
"It's highly unusual that the state released material concerning matters that are generally protected discussions between counsel," she said.
Public records show that on Feb. 17, the day before Kitzhaber stepped down and Willamette Week published its first story quoting from his emails, the governor's lawyers demanded that the state seek a court order against the newspaper. Boss refused, saying, "The United States Supreme Court has indicated that prior restraints on the press are severely restrained by the First Amendment."
Among the material quoted in the Willamette Week story was an interaction between Kitzhaber and his attorneys outlining a legal strategy, which was at odds with Kitzhaber's public statements.
"Be advised that our client will hold the state fully responsible for any and all adverse consequences, both civil and criminal, that result from this," one of Kitzhaber's lawyers, Jim McDermott, told Boss.