Why did feds push out attorney general on Kitzhaber? It’s a secret
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on March 12, 2015 at 3:53 PM, updated March 17, 2015 at 1:13 PM
Ellen Rosenblum, Oregon’s attorney general, wanted to team up with the federal agencies investigating the influence-peddling scandal involving then-Gov. John Kitzhaber and his fiancée, Cylvia Hayes.
Rosenblum thought for a time she was part of a joint state-federal investigation. But federal authorities wanted her out. They got their way.
Since Rosenblum agreed to suspend the state’s brief investigation Feb. 27, a key question has remained: Why did the U.S. Attorney’s Office and FBI isolate Oregon’s top law enforcement official from what would’ve been the highest-profile case in her tenure?
Federal authorities forced Rosenblum to suspend an unprecedented investigation of a sitting governor less than three weeks after it started.
Throughout Rosenblum’s investigation, it remained unclear whether she had the legal authority to pursue the case or whether her effort was simply political posturing.
Rosenblum has refused to explain what happened, keeping secret key documents that could yield answers.
The attorney general declined The Oregonian/OregonLive’s request for an interview about her actions. Federal officials, who are leading an active criminal case, also declined comment. But Rosenblum has acknowledged that federal authorities asked her to step aside.
Rosenblum has put an unusual blanket of secrecy over key aspects of her involvement in the state’s investigation. She refused to release records — even drafts of press releases — that could confirm when it began and when she agreed to sit it out. She refuses to provide correspondence between her and federal officials, including U.S. Attorney Amanda Marshall, that could shed light on why they wanted her gone.
The timing, particularly of the state investigation’s inception, is important. Documents requested by The Oregonian/OregonLive could show whether Rosenblum decided to investigate on her own, as she has said, or at Kitzhaber’s instigation.
Rosenblum handled the situation awkwardly from the start. Her first comment about the growing scandal came in a Feb. 4 Willamette Week story. The attorney general told the newspaper she was reluctant to comment about the case. “It’s not appropriate since we represent that office,” she said.
A day later, Rosenblum told The Oregonian/OregonLive the allegations against the governor and Hayes were “very serious — and troubling.” She said she was reviewing legal options.
On Feb. 6, Kitzhaber sought a private conversation with the attorney general about a potential investigation. Later that day, the governor’s general counsel, Liani Reeves, emailed Deputy Attorney General Fred Boss saying the governor supported an independent review.
The following Monday, Feb. 9, with pressure mounting, Kitzhaber formally asked Rosenblum to review matters, writing her a letter he immediately made public. Rosenblum responded in a letter she too made public that she had already begun investigating. Her public announcement’s timing made it appear she was reacting to Kitzhaber’s request, not acting independently.
Two days later, Boss met with Kitzhaber to discuss the state’s litigation with Oracle over Cover Oregon, once one of Kitzhaber’s signature policy initiatives. Kitzhaber’s attorney and another state Justice Department civil division lawyer also attended, according to Rosenblum’s spokeswoman.
It would be one of Kitzhaber’s final meetings as governor. He announced his resignation two days later.
The meeting shows the competing duties facing Rosenblum and her office. At the same time Rosenblum treated Kitzhaber like a target, her deputy treated the governor like a client, briefing him on high-stakes litigation.
Having the deputy attorney general meet with an investigation target “does have the appearances of some impropriety that people should be concerned about, even if no impropriety is going on,” said John Deits, a former federal prosecutor in Portland. The appearances of “a strong conflict of interest” for Rosenblum’s office would concern federal authorities trying to develop a case in secret, he said.
“You don’t know what the obligations the attorney general may have to the governor in terms of disclosures and access to information,” Deits said. “It’s a very unusual situation, but I can understand if the U.S. Attorney’s Office was a little concerned about the parameters of their dance partners.”
Rosenblum’s pursuit of the Kitzhaber-Hayes case boosted her public corruption prosecution credentials less than a month before she announced she was seeking reelection. But it fostered a deep division between her office and its federal counterparts and drew attention to the conflicts she faced going after a sitting governor being aggressively scrutinized by media, including Willamette Week.
Kitzhaber appointed Rosenblum to her office in 2012 after she won a Democratic primary to fill a partial term. She is married to Richard Meeker, the publisher of Willamette Week.
Her spokeswoman said neither connection was relevant to Rosenblum’s investigation.
“The attorney general has never believed that there is a conflict of interest that would prevent the state from conducting a fair and thorough investigation,” said Kristina Edmunson, the spokeswoman.
Hardy Myers, a former Oregon attorney general, said while his former office technically represents state government as a client — not any individual — the lines blur with publicly elected officials.
“On a practical day-to-day basis, the form of interaction that can occur between the Department of Justice and the governor probably would put the governor in the category of a client of the department,” Myers said.
The state faced other challenges in cooperating with the FBI and U.S. Attorney’s Office. The state Department of Administrative Services on Feb. 13 disclosed a subpoena revealing that federal authorities had launched a sweeping investigation of Kitzhaber and Hayes.
That subpoena, a legal demand for records, sought documents from numerous state agencies and individuals. It included an unusual request for the state Justice Department’s records of any investigation it had underway.
Rosenblum’s agency also is tasked with helping manage the state’s response to the subpoena, reviewing records for submission to federal agents.
On Feb. 17, Rosenblum’s spokeswoman, Edmunson, maintained that the state investigation was continuing in coordination with the federal effort.
Two days later, at the FBI’s request, Rosenblum met with Marshall at the state Department of Justice’s Portland office. Rosenblum’s spokeswoman said Rosenblum left with an understanding the state would have a role in a joint criminal investigation.
While both investigations were open, Rosenblum, Marshall and the FBI exchanged four letters about them. Rosenblum has refused to release them. Michael Kron, her special counsel for legal matters, cited a public records exemption that allows the state to keep information secret to protect a criminal investigation.
Kron wouldn’t disclose even the dates of the letters.
The timing of Rosenblum’s decision to suspend her investigation also remains unclear. Her office has refused to release documents that would show when Rosenblum and her staff made key decisions.
In the week after Rosenblum met with Marshall, rumors swirled that the state’s investigation was being suspended. Yet on Thursday afternoon, Feb. 26, Rosenblum’s spokeswoman was adamant it was ongoing.
“We still have an open investigation,” Edmunson said. “We are still investigating.”
The next day, Rosenblum announced that the Justice Department would suspend its investigation at the request of federal authorities.
She said in return, federal officials agreed to share their investigative files with the state when their investigation was done. Such a move is a common step.
Rosenblum’s special counsel, Kron, wouldn’t provide drafts of that publicly issued statement, citing the legal authority under the Oregon Public Records Law to protect criminal investigatory information.
Edmunson also explained that while the suspension of the investigation was likely when she was questioned by a reporter on Feb. 26, “I was not in a position to confirm it.”
The same day Rosenblum made her announcement, her deputy took another step that underscored the office’s conflicting roles.
At the request of Kitzhaber’s private attorneys, Boss agreed to delay submitting thousands of Kitzhaber emails to the very federal grand jury that state investigators would have been working with.
The decision gave Kitzhaber’s attorneys time to seek a federal judge’s order to quash the grand jury’s demand for Kitzhaber’s emails.
Bryan Denson and Nick Budnick contributed reporting.
Correction: This post has been updated with the correct title for Michael Kron. He is special counsel for legal matters.
— Rob Davis