The Democratic voter fraud commissioner who sued the now-defunct panel last year claiming it had shut him out of its operations is now asking a court to allow him to serve a subpoena on its one-time leader so that records related to the lawsuit are not destroyed.
Maine Secretary of State Matthew Dunlap said in the filing that he is concerned that the commission’s co-chair, Kansas Secretary of State Kris Kobach, will not preserve internal communications a judge had previously ordered he handed over.
“Defendant Kobach’s record with respect to compliance—even with court orders—is spotty, to say the least,” Dunlap said.
Dunlap cited a fine Kobach had to pay in a seperate lawsuit, after misleading the judge, as well as the Justice Department’s posture in his case, in which it has argued that it cannot compel Kobach to turn over the documents but has asked him to save them.
Furthermore, Dunlap said that he did not receive a letter the Justice Department claimed to have sent to all of the commissioners asking that they preserve their commission records as the litigation continues. Regardless, Dunlap said, a letter “cannot stand in the place of judicial process that creates legally-enforceable obligations.”
“In short, DOJ has disavowed any authority to legally obligate individual commissioners to preserve or return Commission records in their sole possession, and—though Secretary Dunlap rejects these contentions—based on its own position, DOJ believes it is currently powerless to prevent the destruction or loss of documents and information,” Dunlap said.
Trump dissolved the commission in early January, as it faced a flurry of lawsuits alleging a lack of transparency, among other things.
Dunlap filed his lawsuit in November, and in late December, a judge ordered that the commission turn over the communications Dunlap had been seeking.
Since the commission’s termination, the Justice Department has been in a multi-front legal battle fending off to new challenges brought against it, many based on statements Kobach made to the press about the future of his inquiry.
A letter from DOJ attorneys to Dunlap’s legal team included in the latest filing, indicates that they saw no “legal basis” for the document preservation subpoena.
“[I]t is difficult to understand why DOJ is opposing the issuance of a subpoena that seeks only to protect the Government’s interest in the preservation of Commission records that are outside the custody of the federal government, nor is it clear why DOJ is advancing arguments that seek only to protect Defendant Kobach—an individual whom DOJ claims is no longer a client—from judicial process,” Dunlap argued in the filing.
Read the full filing below:
