Kansas Secretary of State Kris Kobach must turn over a copy of a proposal he was photographed taking into a meeting with Donald Trump before Trump’s inauguration, a federal judge said Monday.
Kobach has until Wednesday to turn over the document – which he held as he went into a meeting with Trump on Nov. 20 – under an order issued by U.S. Magistrate Judge James O’Hara.
An Associated Press photographer captured a partial view of the document, which was obscured by Kobach’s arm. The document contained Trump’s plan for the Department of Homeland Security and called for the questioning and tracking of “high-risk” immigrants.
The photograph also revealed that the documents included a reference to voter rolls.
The American Civil Liberties Union sought its disclosure as part of an ongoing lawsuit against 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, then the documents may contain material relevant to the case.
“I think the Judge’s order, finding that Secretary Kobach has engaged in ‘word-play meant to present a materially inaccurate picture of the documents,’ speaks for itself,” Dale Ho, director of the ACLU Voting Rights Project, said in an e-mail.
“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 will be allowed to largely redact the photographed document because O’Hara ruled that only the portions directly relevant to the lawsuit must be disclosed.
“There is no comment at this time. We are reviewing the magistrate’s order,” Kobach spokeswoman Desiree Taliaferro said Monday.
Kobach had argued the document should be exempt from disclosure because of executive privilege. In a previous court filing, Kobach argued the request for the document was “overly broad and irrelevant.”
O’Hara was unpersuaded.
“In the end, defendant simply hasn’t presented sufficient argument or evidence to persuade the court that the executive privilege protects the photographed document from discovery,” O’Hara said in his opinion.
Trump also wasn’t president at the time, O’Hara noted. No court has recognized executive privilege for communications made before a president takes office, he said.
O’Hara also said that Trump himself hadn’t asserted privilege over the document. Kobach is not a member of the executive branch and is unable to assert privilege, he said.
In the opinion, O’Hara wrote that “if indeed Secretary Kobach was a member of the ‘transition team’ for President-elect Trump, then it’s reasonable to infer that Secretary Kobach would have notified President Trump and given him an opportunity to weigh in on this dispute.”
O’Hara’s ruling followed a personal examination of the documents.
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.
The judge’s order also requires Kobach to provide the ACLU with a copy of a draft amendment to the NVRA, which he had crafted and shared with his staff. Kobach had said that document was protected by attorney-client privilege, an argument the judge rejected.
The NVRA, which is also known as the motor voter law, allows U.S. citizens to register to vote when they go to the Department of Motor Vehicles 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.
A federal judge blocked Kobach from enforcing the proof of citizenship requirement for people who registered at the DMV during the 2016 election on the basis that it violated the NRVA, which enables people to register to vote when they get a driver’s license.
A federal appeals court found that Kobach had failed to show substantial evidence that the requirement, which critics say prevents rightful voters from casting ballots, is needed to prevent noncitizen voting.
Rick Hasen, an election law expert at the University of California, Irvine School of Law, said in an e-mail 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.”
Kobach’s office announced last week its first conviction of a noncitizen 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 before becoming a citizen.
Contributing: Bryan Lowry of Kansas City Star