Mike Pence.
Mike Pence. (Photo: Gino Santa Maria/Shutterstock.com)

Sorry Mike Pence–turnabout is fair play.

You can’t spend weeks demanding that Hillary Clinton bare all of her emails and then think it’s A-OK to claim your communications as governor of Indiana should be shielded from disclosure.

The Indianapolis Star on Monday detailed a pending fight before the Indiana Court of Appeals, where Pence and his lawyers from Barnes & Thornburg argue that it’s not up to the courts to second-guess the governor’s decision about what information to make public.

The vice president-elect wants to keep secret the contents of an email sent by a political ally, as well as some details about the work that Barnes & Thornburg did for Indiana.

William Groth, a prominent Democratic labor lawyer in Indiana, sued Pence under Indiana’s public records law in 2015 in Marion Superior Court.

Concerned about public waste, Groth wanted information about the governor’s decision to hire 600-lawyer Barnes & Thornburg to represent Indiana in State of Texas et al v. United States. Of the 26 states that signed on to challenge President Obama’s executive order on immigration, Indiana alone was represented by outside counsel.

That’s because Indiana’s attorney general, Greg Zoeller, did not favor the suit. “State governments do not have legal authority to enact and enforce immigration policy on their own,” he said in a press release.  

So Pence turned to Barnes & Thornburg partners Joseph Chapelle and Peter Rusthoven instead. The choice of counsel wasn’t surprising—according to The American Lawyer, managing partner Robert Grand was a fundraiser for Pence, and during the vetting process, Barnes & Thornburg Indianapolis partner Matthew Morgan fielded questions for the governor, CNN reported. The firm is also representing the vice-president elect in the current public records suit.

Chapelle in an email on Monday said he was in trial and did not have time to comment.

Groth sought documents relating to the governor’s decision to join in the Texas lawsuit, the decision to hire outside counsel and the cost to Indiana taxpayers relating to the lawsuit.

According to Groth, the governor responded by producing redacted invoices from the firm, and turned over 57 pages of email messages with redactions.

One missing piece is a “white paper” that was sent as an email attachment.  The paper was written by the chief of staff to the Texas governor-elect, Greg Abbott, and sent to 30 recipients–officials in states that were considering joining the lawsuit.

Pence claims the white paper is confidential based on attorney-client privilege.

But Groth argues it’s not. “The white paper, although possibly written by a lawyer, was not written by the governor’s attorney. To assert attorney-client privilege, the governor must show an attorney-client relationship, and must show the communication was confidential to that relationship,” he wrote in his appellate brief to the Indiana Court of Appeals.

He continued, “By withholding the entire document, rather than redacting only the parts that are true attorney-client communications, the governor has improperly denied disclosure of a public record.”

As for the Barnes & Thornburg invoices, Groth protested that some passages are blacked out, so he has no way to tell if information has been properly withheld.

All this seems like a pretty standard public records dispute (and I’m skeptical anything that’s called a “white paper” is going to be interesting anyway.)  Moreover, Barnes & Thornburg makes very capable arguments that the information is in fact privileged.

That’s not really the point. Because Pence’s legal team raises a bigger issue: is the question even justiciable?

Pence and  Barnes & Thornburg make an argument I find shocking: “[T]he judiciary should not ‘intermeddle’ with the determination by a co-equal branch of what constitutes its own work product or other material exempted from public disclosure,” Chapelle wrote.

In other words, the court shouldn’t look over the governor’s shoulder to see if he turned over the requested records.

“Judicial inquiry into what documents the governor chose to withhold from Groth in responding to his specific requests about Indiana’s challenge to President Obama’s actions constitute intermeddling with the internal functions of the executive branch in violation of Article 3, Section 1, of the Indiana Constitution,” Chapelle continued.

Let’s stop for a second and see how that passage reads if we take out Pence and substitute Hillary Clinton, whose email problems began in large part due to a series of FOIA suits by Judicial Watch. We get this: “Judicial inquiry into what documents Clinton chose to withhold … constitute intermeddling with the internal functions of the executive branch.”

Really? Wow, wouldn’t that have been something if that was the standard?  As in, “Here are the documents I’ve decided you can have, now go away.”

Even more incredible, the lower court bought it, citing an April decision by the Indiana Supreme Court that the legislature’s redactions were nonjusticiable. The superior court judge in the Pence case, Michael Keele, extended the reasoning to cover the executive branch as well.

As Gerry Lanosga, an Indiana University media professor specializing in public records law, told The Indianapolis Star, “It comes down to this—the court is giving up its ability to check another branch of government, and that should worry people.”

The Indiana Court of Appeals will hear oral arguments Nov. 21.

Contect Jenna Greene at jgreene@alm.com. On Twitter @jgreenejenna.

Sorry Mike Pence–turnabout is fair play.

You can’t spend weeks demanding that Hillary Clinton bare all of her emails and then think it’s A-OK to claim your communications as governor of Indiana should be shielded from disclosure.

The Indianapolis Star on Monday detailed a pending fight before the Indiana Court of Appeals, where Pence and his lawyers from Barnes & Thornburg argue that it’s not up to the courts to second-guess the governor’s decision about what information to make public.

The vice president-elect wants to keep secret the contents of an email sent by a political ally, as well as some details about the work that Barnes & Thornburg did for Indiana.

William Groth, a prominent Democratic labor lawyer in Indiana, sued Pence under Indiana’s public records law in 2015 in Marion Superior Court.

Concerned about public waste, Groth wanted information about the governor’s decision to hire 600-lawyer Barnes & Thornburg to represent Indiana in State of Texas et al v. United States. Of the 26 states that signed on to challenge President Obama’s executive order on immigration, Indiana alone was represented by outside counsel.

That’s because Indiana’s attorney general, Greg Zoeller, did not favor the suit. “State governments do not have legal authority to enact and enforce immigration policy on their own,” he said in a press release.  

So Pence turned to Barnes & Thornburg partners Joseph Chapelle and Peter Rusthoven instead. The choice of counsel wasn’t surprising—according to The American Lawyer, managing partner Robert Grand was a fundraiser for Pence, and during the vetting process, Barnes & Thornburg Indianapolis partner Matthew Morgan fielded questions for the governor, CNN reported. The firm is also representing the vice-president elect in the current public records suit.

Chapelle in an email on Monday said he was in trial and did not have time to comment.

Groth sought documents relating to the governor’s decision to join in the Texas lawsuit, the decision to hire outside counsel and the cost to Indiana taxpayers relating to the lawsuit.

According to Groth, the governor responded by producing redacted invoices from the firm, and turned over 57 pages of email messages with redactions.

One missing piece is a “white paper” that was sent as an email attachment.  The paper was written by the chief of staff to the Texas governor-elect, Greg Abbott, and sent to 30 recipients–officials in states that were considering joining the lawsuit.

Pence claims the white paper is confidential based on attorney-client privilege.

But Groth argues it’s not. “The white paper, although possibly written by a lawyer, was not written by the governor’s attorney. To assert attorney-client privilege, the governor must show an attorney-client relationship, and must show the communication was confidential to that relationship,” he wrote in his appellate brief to the Indiana Court of Appeals.

He continued, “By withholding the entire document, rather than redacting only the parts that are true attorney-client communications, the governor has improperly denied disclosure of a public record.”

As for the Barnes & Thornburg invoices, Groth protested that some passages are blacked out, so he has no way to tell if information has been properly withheld.

All this seems like a pretty standard public records dispute (and I’m skeptical anything that’s called a “white paper” is going to be interesting anyway.)  Moreover, Barnes & Thornburg makes very capable arguments that the information is in fact privileged.

That’s not really the point. Because Pence’s legal team raises a bigger issue: is the question even justiciable?

Pence and  Barnes & Thornburg make an argument I find shocking: “[T]he judiciary should not ‘intermeddle’ with the determination by a co-equal branch of what constitutes its own work product or other material exempted from public disclosure,” Chapelle wrote.

In other words, the court shouldn’t look over the governor’s shoulder to see if he turned over the requested records.

“Judicial inquiry into what documents the governor chose to withhold from Groth in responding to his specific requests about Indiana’s challenge to President Obama’s actions constitute intermeddling with the internal functions of the executive branch in violation of Article 3, Section 1, of the Indiana Constitution,” Chapelle continued.

Let’s stop for a second and see how that passage reads if we take out Pence and substitute Hillary Clinton, whose email problems began in large part due to a series of FOIA suits by Judicial Watch. We get this: “Judicial inquiry into what documents Clinton chose to withhold … constitute intermeddling with the internal functions of the executive branch.”

Really? Wow, wouldn’t that have been something if that was the standard?  As in, “Here are the documents I’ve decided you can have, now go away.”

Even more incredible, the lower court bought it, citing an April decision by the Indiana Supreme Court that the legislature’s redactions were nonjusticiable. The superior court judge in the Pence case, Michael Keele, extended the reasoning to cover the executive branch as well.

As Gerry Lanosga, an Indiana University media professor specializing in public records law, told The Indianapolis Star, “It comes down to this—the court is giving up its ability to check another branch of government, and that should worry people.”

The Indiana Court of Appeals will hear oral arguments Nov. 21.

Contect Jenna Greene at jgreene@alm.com. On Twitter @jgreenejenna.