Wednesday, May 31, 2023 | Back issues
Courthouse News Service Courthouse News Service

Former Oregon Governor Takes Email Fight to 9th Cir.

PORTLAND, ORE. (CN) - Former Oregon Gov. John Kitzhaber has asked the Ninth Circuit to reverse a court order requiring him to hand his emails over to a federal grand jury.

Kitzhaber stepped down on Feb. 15 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.

Kitzhaber is fighting a subpoena from a federal grand jury ordering him to hand over emails from his time in office. Kitzhaber apparently asked U.S. District Judge Marco Hernandez to reject that subpoena, but the judge refused.

Those details are unavailable because documents in the case were filed under seal.

In a hearing on Monday at Pioneer Courthouse in Portland, attorney Janet Lee Hoffman asked Ninth Circuit Judges Raymond Fisher, Marsha Berzon and Paul Watford to quash the subpoena.

Hoffman said the subpoena used language that was too broad to be constitutional.

"An individual is entitled to a reasonable expectation of privacy," Hoffman said. "They just said, 'We want it all.' "

And any emails between Kitzhaber and his lawyers are protected under attorney-client privilege, Hoffman argued.

U.S. Attorney Kelly Zusman said the emails between Kitzhaber and his lawyers may be protected, but the rest of Kitzhaber's emails in the state archive should be released to the grand jury.

"Our issue is there is no reasonable expectation of privacy in material that's stored in the state archives," Zusman said.

Those emails would remain under seal, along with the rest of the records of the grand jury proceedings, Zusman said.

And if Kitzhaber ends up facing an indictment, he could still quash or exclude the emails, she said.

In September, Gov. Kate Brown made public 5,000 of Kitzhaber's emails from a private account.

And in August, a Marion County Circuit Court judge ordered Hayes to turn over emails on her personal computer for an in-camera review.

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.