INDIANAPOLIS (CN) – After an election cycle of questioning Hillary Clinton’s email practices, Vice President-elect Mike Pence was the target Monday in a court battle over his own email secrecy.
Appearing before the Indiana Court of Appeals, attorney William Groth argued that Pence wrongfully refused to disclose certain communications after deciding to hire outside legal counsel to join a 2014 lawsuit against the federal government.
The 2014 lawsuit was originally filed by then-Texas Attorney General Greg Abbott and sought to overturn President Barack Obama’s executive order protecting millions of illegal immigrants from deportation. Indiana later joined the case on Abbott’s side. Texas, Indiana and 15 other states argued that Obama was overreaching his power.
Once Pence decided to hire the outside law firm of Barnes & Thornburg, Groth filed a public records request and questioned the decision to hire outside counsel at the expense of taxpayers.
According to the Indianapolis Star, Groth said, “I think joining the lawsuit without the attorney general and hiring that firm was a waste of taxpayer dollars and the people have a right to know how much of their money was spent.”
One of the files Groth sought was a “white paper” email attachment that was not released in response to his public records request. According to court documents, the email attachment was sent from the Texas governor’s chief of staff to 30 recipients in various state offices.
The message was reportedly an invitation to other states to join the lawsuit. It followed a meeting that took place to discuss the lawsuit, although Pence’s attendance or specific details of the meeting were unclear during court proceedings.
“The white paper the governor refused to disclose was part of a solicitation by Texas state officials urging other states to join its lawsuit seeking to invalidate immigration initiatives by President Obama,” Groth wrote in court papers.
Pence eventually disclosed 57 pages of emails, including invoices for legal services rendered, but they were heavily redacted and the email attachment was not released.
Groth sued, but the Marion County Superior Court ruled in favor of Pence, finding that issue was not one for courts to decide.
The Superior Court relied upon an Indiana Supreme Court ruling in Citizens Action Collation v. Indiana House Republican Caucus, which found that the judicial branch of government could not interfere with the legislative branch in the handling or disclosing of their “work product,” due to the separation of powers clause in the state constitution.
On Monday, a three-judge panel of the Indiana Court of Appeals heard arguments from Groth’s counsel, Gregory Bowe, and Joseph Chappelle, who represented Pence in the brief 45-minute proceeding.
Bowe argued that the email attachment in question stemmed from a “solicitation” to Indiana to join the federal lawsuit, and such a communication should not be covered by attorney-client privilege.
Bowe’s argument rested on his belief that his opposition had simply failed to prove that an attorney-client relationship was established when the initial solicitation was sent.
Chappelle argued the exact opposite, claiming the communication is exempt from Indiana’s Access to Public Records Act, also known as APRA, because it was protected attorney-client information. He argued that just because the email was sent from a third party, it could still be considered privileged communications.
The differing arguments prompted Judge Nancy Vaidik to ask, “Isn’t that the whole purpose of APRA…to see who’s soliciting our government?”
The panel grilled both lawyers with other hypothetical examples of solicitation, which included a girl scout soliciting cookie sales from a buyer’s door, an accident lawyer soliciting a client through the mail, and a solar company soliciting the sale of solar panels to the government.
Both Chappelle and Bowe doubled-down on their differing assertions of whether the communications are protected by attorney-client privilege, a difference that will likely decide the outcome of the case.
After arguments from both sides, Vaidik concluded the proceedings and thanked both attorneys.
Vaidik was joined on the panel by Judges John Baker and Edward Najam.
A decision is expected in the coming weeks.