Politics & Government

Hawley campaign paid attorneys to screen Mizzou emails for public release

Missouri Attorney General Josh Hawley
Missouri Attorney General Josh Hawley

Republican Senate hopeful Josh Hawley paid lawyers tens of thousands of dollars from his campaign funds to review emails and other documents from his time as a University of Missouri law professor before those records could be released under the state's Sunshine Law, according to documents obtained by The Star through an open records request.

A Mizzou spokesman described Hawley's use of outside attorneys to review the emails as "very rare." Officials at the university could not remember a time in recent history when this had been done before.

Experts said Hawley's use of campaign funds was legal. Democratic groups that filed the records requests for documents said it was hypocritical of Hawley, who has cast himself as a proponent of Missouri's Sunshine Law as attorney general and during his Senate campaign to unseat Sen. Claire McCaskill, D-Mo.

Hawley has asked the Missouri state legislature to strengthen the Sunshine Law to give him subpoena power and the authority to enforce the state’s records retention law.

The Democratic Senatorial Campaign Committee and another Democratic group, American Bridge, submitted requests last year under Missouri's Sunshine Law, looking for documents from Hawley as well as his wife, Erin

Hawley's campaign explained that Erin Hawley, who still works as a professor at the law school, "did not feel it was appropriate for her to be making public records determinations.

"She declined to review the more than 19,000 documents in question and instead she and Josh secured third party counsel to conduct an outside privilege review to ensure no attorney-client or attorney work product emails were released, in keeping with Missouri’s attorney ethics requirements.," the campaign said.

Among the emails the Hawleys' outside attorneys had sought to withhold from public release were messages between Hawley and his wife as "legally privileged spousal communications."

After inquiries from The Star, the Hawleys said Monday that they had asked their attorney to provide a reporter with copies of the emails between the couple. The Star received those emails Monday night. They are published below.

In addition to initially asking the university to withhold emails between Josh and Erin Hawley, the couple's attorneys had asked the university to withhold emails related to Josh Hawley's work for the Becket Fund for Religious Liberty, citing attorney-client privilege, as well as documents tied to his consulting work for an unnamed law firm and Josh and Erin Hawley's work on an amicus brief for the U.S. Supreme Court.

Other emails flagged by the Hawleys' attorneys were messages that contained students' names, the Hawleys' home address and a photo of their home, and tax documents with Josh Hawley's personal information.

In some cases, the university complied with requests by the Hawleys' attorneys to withhold documents; in other cases they did not. It's difficult to characterize which materials ultimately were withheld based on the emails obtained by The Star.

"What's Hawley hiding?" said David Bergstein, spokesman for the Democratic Senatorial Campaign Committee. "He talks a lot about transparency but doesn't want to apply the same rules to himself."

The DSCC submitted its open records request to the university in July 2017, as buzz built around the possibility that Hawley would jump in Missouri's U.S. Senate race.

On August 30, Paula Barrett, custodian of records for the University of Missouri system, sent an email to Erin Hawley about the DSCC's request for records from both her and her husband.

"Please have Josh review these files and make notes on a separate document that reference the file and page numbers of each document he has questions or concerns about," Barrett wrote.

Barrett wrote that she anticipated this review would be "a huge undertaking."

Erin Hawley responded on September 9 that she did not personally want to be involved in reviewing any emails and was sure her husband would not want to be either.

"My only concern is to ensure that no legally privileged materials are inadvertently released, such as emails that if disclosed would violate my duty of attorney-client privilege," she wrote to the university's open records officer. "In light of that, I have asked an attorney to review the emails for privileged information. He should be in touch."

Barrett wrote back on September 11, telling Erin Hawley that her review was "certainly not required."

"We give employees the opportunity to review what is being released as a courtesy and because they are more familiar with the intricacies of their work when it comes to research and in your case, documents that would be closed under attorney-client privilege," Barrett explained.

A few days earlier, on September 7, David Thompson of the Washington, D.C. law firm Cooper & Kirk had sent Barrett an email to notify her that his firm would be "reviewing all of the emails for privilege, responsiveness, and compliance with all applicable laws. The Hawleys have us to perform this review."

Hawley's federal campaign committee has paid Cooper & Kirk $95,000 for legal services since he launched his Senate bid last year. The same firm represented Hawley for free in a lawsuit over a previous records request during his attorney general campaign.

The Missouri Ethics Commission earlier this month dismissed a complaint filed by a Democratic attorney who had accused Hawley of not properly disclosing Cooper & Kirk's free legal services in his state campaign finance reports.

University of Missouri spokesman Christian Basi said it is standard practice for the university to inform employees whenever a Sunshine Law request is file that involves them, primarily because it helps the university be accurate in its response.

Basi said it is "very rare" for a faculty member to use outside counsel to review emails in response to an open records request. "We can’t remember a time in recent history when that has been done before," he said.

Hawley's attorneys, Basi said, "made recommendations on what they believed should have been closed and what they believed should not have been closed, and then the custodian of records office along with the university legal counsel took that into consideration when they made a final decision."

Campaign finance experts said Hawley's use of his Senate campaign funds in this case appeared to be permissible under federal law.

"Any expense that would not exist if this person wasn’t running for office is a permissible use of campaign funds," said Paul S. Ryan, vice president for policy and litigation at Common Cause, a government watchdog group.

"It’s kind of a good thing that Hawley’s using campaign funds that are subject to limits and disclosure to pay for these political expenses," Ryan said. Some politicians, including President Donald Trump, have used funds not subject to disclosure or contribution limits to raise money for legal bills, he said.

In June 2015, when he was still a law professor at University of Missouri, Hawley argued to university legal counsel that his emails and other documents were not subject to open records law.

"It seems to me that the University may want to think very hard before turning over materials from individual faculty not related to university administration or governance," Hawley wrote in an email on June 17, 2015.

A little more than a month later, in July 2015, he would announce his candidacy for attorney general, an office he would go on to win in November 2016.