North Carolina Republican lawmakers on Monday asked a court to make sure the files of the now-deceased GOP strategist Tom Hofeller are destroyed, or at least kept secret, instead of being used in a high-profile gerrymandering lawsuit.
The lawmakers argued that their opponents in the gerrymandering lawsuit “have a terrible case” and “have no choice but to wage a smear campaign designed to turn this forum into a stage for political disputes.”
The filing comes after the groups behind the lawsuit, including Common Cause, accused Republican lawmakers of making false statements in court in a previous gerrymandering case, when the state’s 2011 maps were ruled unconstitutional. That blockbuster accusation made national headlines and was, it said, based on Hofeller’s files which had been secret until recently.
Common Cause and the others argued that the files “reveal false statements and material omissions made by legislative defendants to the federal district court” in that prior lawsuit.
On Monday, the lawyers for the legislative leaders responded by not only requesting that the files be kept secret, but also by suggesting that the lawyers for their opponents could be removed from the case as a punishment for looking at the files.
“One might expect that, with such a bald allegation of misconduct by elected officials, plaintiffs would have some strong support for it, some smoking gun, or admission,” the lawyers for the legislators wrote. “But, in fact, they have nothing of the sort.”
A key part of the lawmakers’ argument is that Hofeller’s daughter lacked legal permission to give anyone his files. They’re also concerned the files contain information about the redistricting process that they normally wouldn’t have had to turn over for this case.
They said the files might contain information that is “privileged.” That could refer to concepts like attorney-client privilege, expert witness work product privilege or legislative privilege, which is an exemption in state law allowing legislators to keep some of their communications private.
Lawmakers’ lawyers estimated that Hofeller’s files contain “nearly 1,300 emails expressly containing an assertion of ‘privilege,’ ‘confidential,’ ‘work product’ or the like related to Dr. Hofeller’s work on behalf of the North Carolina legislature.”
Common Cause has already responded to some of the accusations made Monday, since the legislature raised many of the same concerns in a letter earlier this month.
In a previous legal filing on June 6, Common Cause argued that it and the other plaintiffs should have access to Hofeller’s files. Any claim for secrecy made by lawmakers, the group wrote, should be denied on account of the potential harm done to “the public interest from concealing it.”
And while the legislators said Monday that the Hofeller files could have an estimated 1,300 emails with privileged information, Common Cause said in its earlier filing that only five emails were possibly privileged, and they have not read them nor do they intend to.
They also argued that since they believe the files show the lawmakers made false statements in court, that should not only waive the privilege claim but also “raise troubling questions regarding legislative defendants’ recent efforts to use improper means to conceal the Hofeller files in their entirety.”
A fight for information
Who will have access to what information has been a key part of the legal proceedings leading up to the trial.
Earlier this month, the judges overseeing the case punished the legislative defendants by making them pay $7,700 in attorneys’ fees to Common Cause and the other plaintiffs, saying the lawmakers didn’t fully obey a court order to search for and hand over documents, and could provide “no evidence of substantial justification” for failing to do so.
The judges also said that the NC Republican Party had improperly resisted answering a subpoena in the case, although the judges declined to order the GOP to pay attorneys’ fees as well since the party eventually complied. However, the judges also warned the GOP that the party could still be forced to pay attorneys’ fees in the future if other issues arise.
The Hofeller files go beyond one case, too, although Monday’s filing only relates to this case.
Common Cause has also said that Hofeller’s files show the Trump administration made false statements about why it wants to put a question regarding citizenship on the 2020 Census, the topic of a different court case.
Although the Trump administration has said that to protect minority rights it’s necessary to ask people if they are citizens — a question that has not been asked of all U.S. households since 1950, PolitiFact found — Common Cause says Hofeller’s files show that he told federal officials the question would dissuade minorities from replying to the census, and that it would help with redistricting after the Census that he said would give more political power to “Republicans and Non-Hispanic Whites.”