PORTLAND (CN) — The Ninth Circuit agreed Wednesday to quash a subpoena related to the influence-peddling scandal that drove Oregon Gov. John Kitzhaber from office.
Kitzhaber stepped down in February 2015 amid allegations that he and his fiancee, Cylvia Hayes, used Kitzhaber’s political office to advocate agendas set by Hayes’ clients at her private consulting firm 3E Strategies.
The FBI and the IRS are investigating the allegations, which Kitzhaber and Hayes have denied.
Though a federal grand jury demanded all of Kitzhaber’s emails from his time in office, Kitzhaber challenged the subpoena as overly broad. He contended that some of the emails concerned his own medical issues or were about his children.
With one modification, U.S. District Judge Marco Hernandez declined to quash the subpoena, sending Kitzhaber to the Ninth Circuit in November.
A three-judge panel sided with the former governor on Wednesday, saying the subpoena created “a clear potential for the violation of Kitzhaber’s rights.”
The 21-page opinion opens with the adage that “a wide net is susceptible to snags.”
If it implicates material about “Governor Kitzhaber’s children or medical care,” the court found, “the subpoena is unreasonably broad.”
Although the Fourth Amendment does not protect any use of a personal email account to conduct public business, the judges said Kitzhaber “had a reasonable expectation of privacy in much of his personal email.”
“The subpoena in this case — which is not even minimally tailored to the government’s investigatory goals — is unreasonable and invalid,” U.S. Circuit Judge Marsha Berzon wrote for the court.
Kitzhaber failed to shield any public-business-related emails that he might have sent on his personal email account.
“The public interest in open and transparent governance is at its zenith when it comes to the state’s top elected official and his communication with senior advisers regarding official business,” Berzon wrote. “Even if state officials expect to evade those laws through the use of personal email addresses, that expectation is not a protected privacy interest.”
Kitzhaber also cannot invoke “attorney-client privilege for his communications with government attorneys regarding conflicts of interests or ethics violations,” Berzon wrote.
“Whatever privilege such communications may implicate is held by the State of Oregon, not Kitzhaber personally,” the ruling continues.
Once the grand jury fashions a new subpoena, a neutral third party could review each one individually to sort them based on sender, recipient and content, the court suggested.
Kitzhaber is represented by attorney Janet Lee Hoffman. Hoffman was on a plane to San Francisco at press time and couldn’t return a request for comment.
U.S. Attorney Kelly Zusman argued for the government.
Gerri Badden, spokeswoman for the U.S. Attorney’s office in Portland, declined to comment specifically on today’s ruling.
She noted in a phone call only that the government is continuing its investigation into Kitzhaber’s possible misconduct.
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