By Bryan Lowry
A federal magistrate judge has ordered Kansas Secretary of State Kris Kobach to disclose documents outlining a strategic plan he presented to President Donald Trump in November, a decision that could have ramifications from Topeka to Washington.
Kobach, who served on Trump's transition team, was photographed in November holding a stack of papers labeled as a strategic plan for the U.S. Department of Homeland Security. That plan, as revealed by the photograph, included the recommendations that the U.S. block all refugees from Syria and engage in "extreme vetting" of immigrants from countries considered high-risk.
It also contained a reference to voter rolls, which was partially obscured by Kobach's hand in the photograph.
The American Civil Liberties Union sought the documents' disclosure as part of an ongoing lawsuit over a Kansas law that requires voters to provide proof of citizenship, such as a birth certificate or passport, when they register to vote. The ACLU argued that if Kobach lobbied Trump on changes to the National Voter Registration Act, commonly called the motor voter law, then the documents may contain material relevant to the case.
Judge James O'Hara in Kansas City, Kan., ordered Kobach to share the documents Monday after privately reviewing them earlier in the month. The judge will allow Kobach to redact the documents, but he wholly rejected the Kansas official's argument that the papers were protected by Trump's executive privilege and even questioned whether Kobach had met his duty of candor as an attorney in his efforts to prevent the ACLU from reviewing the papers.
O'Hara said that "even adopting defendant's view that the executive privilege may be asserted by a president over communications made before he takes office, defendant doesn't address the fact that now-President Trump conspicuously has not asserted the privilege over the photographed document."
The White House and the Justice Department did not immediately comment on the case.
Trump met with Kobach multiple times before his inauguration and top-level Trump staffers have pointed to the Kansas official as the source behind the president's unsubstantiated claim that millions of illegal voters enabled Democrat Hillary Clinton to win the popular vote.
O'Hara noted that Kobach is not a member of the executive branch able "to assert the privilege himself." Kobach has previously been rumored as a candidate for positions in DHS and the U.S. Department of Justice, but so far nothing has come to fruition.
Kobach, who is weighing a run for Kansas governor, did not return a phone call Monday. His spokeswoman, Desiree Taliaferro, said in a phone call that the office was "currently reviewing the magistrate's order. That's the comment."
The judge's order also requires Kobach to provide the ACLU with a copy of draft amendment to the motor voter law, which he had crafted and shared with his staff. Kobach had claimed that document was protected by attorney-client privilege, an argument the judge rejected.
The motor voter law allows U.S. citizens to register to vote when they go to the DMV to obtain a driver's license. The federal case concerns whether Kobach has the authority to require DMV voters to provide proof of citizenship under this law. The ACLU has argued that if Kobach sought changes to the law, it would amount to an admission that the current federal law does not grant him this authority.
Rick Hasen, an election law expert at the University of California, Irvine School of Law, said in an email that there "is considerable interest in what Secretary Kobach has proposed about changing the motor voter law, because we know the President has listened to his views on voter fraud in the past."
Dale Ho, the executive director of the ACLU's Voting Rights Project, said in an email that the judge's order, which found that Kobach "has engaged in 'word-play meant to present a materially inaccurate picture of the documents,' speaks for itself."
Kelly Arnold, the state chair for the Kansas Republican Party, called it "concerning that somebody takes a photo of a cover page of documents that somebody is walking into with for a meeting with a newly-elected president and a judge rules that those are now open to be used in a lawsuit because somebody snapped a picture."
Asked whether the disclosure could be damaging to the new president or Kobach, who is weighing a run for Kansas governor, Arnold said that "it depends what ultimately is inside of those documents" and their disclosure could actually prove to "be an asset" for Kobach in the long-term.
Ho noted that the court "suggested that Secretary Kobach violated his 'duty of candor' and his 'duty not to assert frivolous arguments,' which should come as no surprise to anyone who has followed his exaggerations about a supposed epidemic of non-citizen voting."
Kobach's office announced last week its first conviction of a non-citizen voter since he became the only secretary of state in the nation with prosecutorial power. The defendant in the case was charged with voting illegally after becoming a citizen.
State Rep. John Carmichael, a Wichita Democrat who has sought to strip Kobach of his prosecutorial power, said Kobach's "treading on the edge of unethical conduct" should serve as "one more strike against the secretary" as lawmakers weigh whether to preserve his expanded power.
"It should come as no surprise to anyone that the federal court has lost patience with Mr. Kobach," Carmichael said.
Jonathan Shorman of The Wichita Eagle and Anita Kumar of McClatchy's Washington Bureau contributed to this report.
(c)2017 The Kansas City Star (Kansas City, Mo.)