The U.S. Attorney’s Office is opposing a request to divulge why the federal government intercepted phone communications of Wichita businessman Brandon Steven and Sedgwick County Commissioner Michael O’Donnell and why investigators suspect them of crimes.
Among other things, the government contends that disclosing the information would jeopardize its investigation.
Steven has said: “I’m aware of the broad nature of this inquiry. As you know and everybody knows, I play high-stakes poker. And from what we understand, they are looking into my poker and my involvement” in a failed effort to open a casino in southeast Kansas.
O’Donnell has said he doesn’t know why his phone communications were tapped.
On Feb. 17, The Wichita Eagle and Beacon Publishing Co. and four current or former employees filed a motion in federal court seeking information about wiretaps of Steven’s and O’Donnell’s phone communications with current reporters Carrie Rengers and Dion Lefler, former executive editor Sherry Chisenhall and former reporter Bryan Lowry.
The Eagle also has obtained letters recently sent by the U.S. Attorney’s Office notifying other recipients that their communications had been intercepted. The letters show that three other people’s phones also have been wiretapped: Rodney Steven, who is Brandon Steven’s brother and business partner; and two other Wichita men, Danny Chapman and Daven Flax.
All the letters are dated Feb. 1. The wiretaps occurred during various 30-day periods in 2015. At the time of the wiretaps, O’Donnell was a state senator representing a portion of west Wichita.
The Eagle argued in its court motion that its employees “have a liberty interest and a property right in their own communications” and “have the right as citizens to be free of unreasonable searches and seizures by the government, and to know which of their private communications have been intercepted by their government, and to know the reasons their government has provided to the Court to justify the interception of their private communications.”
On Tuesday, the U.S. Attorney’s Office answered in a court filing, saying: “Other than a desire to publish a story about the United States’ investigation … nothing else can be discerned from the plaintiff’s motion. … To order disclosure at this junction would greatly jeopardize the investigation and interfere with the privacy of individuals not the targets of this investigation.”
The Eagle argued that Brandon Steven, who owns auto dealerships and other enterprises, and O’Donnell, who is a county commissioner and former state senator and City Council member, “are prominent persons and public figures in the Wichita community, who have direct relationships with thousands of other citizens.”
“In the interest of justice, members of the public, especially those who have already had direct dealings with either or both of these men or who may wish to consider such dealings, should be afforded the opportunity to know the basis for the government’s representations to this Court that led the Court to conclude that probable cause exists to believe that each of these men has engaged in criminal activity,” The Eagle’s motion said. “That interest is especially great in the case of Mr. O’Donnell, who is an elected official representing hundreds of thousands of citizens in Sedgwick County.”
The government’s counterargument was that the law protects “the privacy of individuals and the interceptions” and the “confidentiality of the government’s investigation.”
“There is a presumption against disclosure of wiretap evidence.”
The government noted that the investigation is ongoing, that no indictments had been filed and that no one has been charged.
The U.S. Attorney’s Office argued: “The plaintiff’s motion is a thinly veiled First Amendment argument advocating a right to obtain access to sealed documents.”
It concluded that monitoring “‘government’s use of wiretaps and potential prosecutions of public officials’ doesn’t trump Congress’ policy of favoring privacy and protecting investigations.”