The Wyoming Supreme Court on Tuesday denied a Cheyenne-based attorney’s request for an order appointing a special prosecutor to investigate Secretary of State Chuck Gray for handing sensitive voter data to the federal government.
The high court also denied the attorney, George Powers’ request that it order Wyoming Attorney General Keith Kautz to recuse himself from this investigation since Kautz’s office has reportedly counseled Gray on the voter data transfer.
Powers hasn’t shown that Kautz has an outright duty to do the things Powers is asking the court to make him do.
A writ of mandamus, the kind of court action Powers filed against Kautz on June 2, is a mechanism by which a court can order a public official to complete some duty. But it only applies where that duty is absolute, clear and indisputable.
“We find Petitioner has not cited any ‘absolute, clear, and indisputable’ law specifically requiring these actions,” said a Tuesday order signed by Wyoming Supreme Court Chief Justice Lynne Boomgaarden. “As such, Petitioner is not entitled to mandamus relief.”
A Little Backstory
The U.S. Department of Justice last year urged Gray to hand over unredacted voter rolls bearing driver's licenses or partial social security numbers.
Gray did so, public records indicate. He’s since said repeatedly that Kautz’s office advised him in this, and approved the release.
Powers started filing public records requests with Gray’s office, and he asked for information about the extent of the Attorney General’s counsel.
Gray claimed attorney-client privilege.
In April, Powers filed a criminal complaint urging Kautz to have a judge appoint a special prosecutor to investigate Gray. Powers pointed to a state law calling voters’ drivers’ licenses and partial Social Security numbers private. Wyoming has another umbrella statute, making election officials who violate election law open to being charged, potentially, with a felony crime.
Kautz told Powers in May the complaint would be handled in accordance with his office’s rules and prosecutorial ethics.
Four weeks passed.
Powers filed the writ of mandamus against Kautz, urging the state’s highest court to intervene.
Last week, Kautz countered that writ, announcing in a court filing that he arranged for two special prosecutors to investigate Gray based on Powers’ complaint: one in his office behind a privacy mechanism called a “Chinese wall,” and another tied to a county prosecutor’s office.
Both special prosecutors declined to charge Gray with a crime, Kautz’s filing says.
Gray in a Tuesday text message called Powers' writ action a political witch hunt and "an attempt to damage my Congressional campaign" in which he also claimed "the Left and the media" were involved.
Gray is running for Wyoming's lone U.S. House seat in a crowded GOP primary against nine other contenders.
Gray said more than 20 states have complied with the DOJ's "lawful request."
"Powers (sic) claims and filings has (sic) been nothing more than lawfare and weaponization of the legal system by leftists and the insider media," Gray said. "I applaud the Supreme Court's common-sense decision to dismiss this case, which was nothing more than a continued and orchestrated effort to harass, intimidate, and demonize me for our work on election integrity. I have and will continue to stand for the truth, and I will continue to comply with the law and advance election integrity and voter list maintenance, which is pivotal to our elections."
Several states, including red states, have refused to hand the sensitive voter data to the federal government, and the DOJ has sued them for it. A case in Utah, which sits within the same federal circuit as Wyoming, is ongoing, among others.
Nine federal courts have sided against the DOJ and dismissed its cases so far.
None Of This Answers Our Questions
Ryan Semerad and Rob Shively, who are also Wyoming-based attorneys, represented Powers in his writ.
Semerad told Cowboy State Daily on Tuesday the dismissal leaves the issue in the dark.
“Sunlight is the best disinfectant,” Semerad said. “I’m sure we’d all like to know how this happened, who did it, and what it was they reasoned and concluded. Because right now, we just don’t know who did what; and we don’t know what they looked at; and we certainly would like to know.”
Cowboy State Daily submitted a public records request to the Wyoming Attorney General’s Office last week for the special prosecutors’ reports in the Gray complaint.
The office declined to disclose those, calling them nonpublic attorney work product.
“Disclosure would reveal the thought processes of attorneys and special prosecutors and potentially confidential source or investigative information,” says the denial email from the office’s public records office.
Powers also submitted a public records request to the Attorney General’s Office last week, he told Cowboy State Daily on Friday. An attached copy of Powers’ June 17 public records request shows that it is much more extensive, requesting instructions and directions given to special prosecutors as well.
As of Tuesday, the AG’s office had acknowledged that it had received that request, and it said it would produce any responsive, disclosable records within the lawful deadline, Semerad said Tuesday.
As for the high court’s denial of Powers’ writ petition, “None of this answers our deeper question, which is, ‘What happened; who did the investigating how did they investigate?’” said Semerad. “It also raises more questions too.”
Clair McFarland can be reached at clair@cowboystatedaily.com.
