Comments by Kansas Secretary of State Kris Kobach, which may have been an attempt to save face as his voter fraud commission was dissolved, have created a number of headaches for the Justice Department attorneys defending the defunct commission in the various lawsuits against it.
“The investigations will continue now, but they won’t be able to stall it through litigation,” Kobach told Breitbart News after the commission was dissolved. That interview has since been referenced in multiple court documents filed by commissions’ legal challengers.
Kobach’s claims — as well as similar claims made by White House Press Secretary Sarah Huckabee Sanders and by President Trump himself — about the next steps for the commission’s so-called investigation have been repeatedly rebuked by government officials in court filings and hearings.
Those remarks, however, have given those who were suing the commission ammo to continue their litigation.
Will DHS do the ‘investigation’ Kobach had been planning?
Trump’s statement announcing the commission’s dissolution said that he had asked the “Department of Homeland Security to review these issues and determine next courses of action.” Kobach described the move as a “tactical shift” that will allow the commission’s “mission” to continue “more efficiently,” “more effectively,” and “without the stonewalling by Democrats.” Kobach told Politico that he expected DHS to do the “investigation” he’d been planning: a comparison of state voter roll data to DHS’s own data on non-citizens.
But the Justice Department, facing a number of legal challenges over how the state voter roll data is being handled, has said that “state voter data will not be transferred to or accessed or utilized by, DHS or any other agency,” citing the declaration of the White House tech official who was in charge of storing it. A DOJ attorney said in a teleconference that the commission’s other records will not be turned over to the DHS.
Maine Secretary of State Matt Dunlap — the Dem commissioner who sued the panel — also has raised concerns that Kobach may have his own copies of the records and asked a court to block him handing them over to DHS or elsewhere.
Did the commission have any “preliminary findings?”
Huckabee Sanders told reporters the day after Trump terminated the commission that the administration was sending “the preliminary findings from the commission to the Department of Homeland Security.”
The DOJ, via its declaration from the White House IT official, Charles Herndon, clarified that the “Commission did not create any preliminary findings.”
DOJ attorney contradicting WH and Kris Kobach claims Trump’s voter fraud had “preliminary findings.”
“There are no initial findings, Your Honor. That is a misperception.” pic.twitter.com/vGISecMEqD
— Sam Levine (@srl) January 11, 2018
Nonetheless, Dunlap pointed to the Brietbart piece based on Kobach’s comments, which said that the commission “revealed” a number of statistics about voter fraud.
“Members of the Commission are making public statements about the Commission’s work and attributing the content of those statements to the Commission,” Dunlap said in court filing. “By depriving Secretary Dunlap of Commission records possessed by other commissioners, Defendants are denying Secretary Dunlap an opportunity to make his own informed comments about the Commission’s work.”
Will Kobach be in involved?
“I’ll be working closely with the White House and DHS to ensure the investigations continue,” Kobach claimed to Breitbart and elsewhere about the next steps for the probe. The Department of Homeland Security was first to shoot that down in a statement that said Kobach was “not advising the Department on this matter.”
More recently, the DOJ has argued that Kobach isn’t in a position to say what will be done with the state data the commission collected, after a judge in a lawsuit brought by the ACLU of Florida ordered Kobach to submit a declaration updating the court on his plans
“Even if Mr. Kobach were to provide the Court with an updated declaration, his declaration would not assist the Court in resolving plaintiffs’ motion,” the DOJ’s filing said. In a teleconference in the Dunlap case, the DOJ attorney said she wasn’t aware of his intentions.
Kobach didn’t respond to TPM’s inquiry asking him to clarify this and the other points.