What Is Rokita So Worried About?

Even before Donald Trump made it impossible for rational people to remain in the GOP, Indiana had more than its share of deeply problematic Republican officeholders. The office of Attorney General, especially, has often been occupied by ideologues and cranks. (I particularly remember the stories that lawyers shared about  “General” Sendak. And more recently, there was Curtis Hill, who hasn’t let his 3-month disbarment for inappropriate “groping” deter him from running for Governor.)

That said, it’s hard to identify an Attorney General more pathetic than the current occupant of that office. Todd Rokita is the “real deal”–if you define “deal” as unethical, monumentally ambitious, self-important and totally un-self-aware.

I’ve posted several times about Rokita, beginning when he was a Congressman accused of abusing his staff and more recently as he has relentlessly attacked the doctor who aborted a ten-year-old rape victim. Rokita accused her of failure to file paperwork, despite the fact that it took only a  cursory check to confirm they’d all been properly submitted.

Rokita  regularly falls over himself pandering to the  Hoosier MAGA crazies who oppose abortion, hate gays and want to outlaw “woke-ness” (which they can’t define.)

Being AG is a full-time job, but when Rokita first took office, he tried to keep (and hide) a lucrative side hustle (details at the link). Now, the Indianapolis Star has discovered that he requires lawyers working for his office to sign wide-ranging non-disclosure agreements.

Indiana Attorney General Todd Rokita’s employees are signing nondisclosure agreements that could cost them $25,000 if they share personal information about the AG — an unusual policy for state office and one that sets him apart from almost all other attorneys general in the country.

The contract, which IndyStar obtained through a public records request, gives Rokita and his staff the power to decide what information counts as confidential. It covers “personal or private information” about the attorney general, his employees and their families.

State offices here and dozens of other states’ attorney general offices told IndyStar they don’t have their employees sign contracts like this. Rokita’s office stands by it, however, and says its employees “understand this requirement” before they agree to work there.

Rokita doesn’t want his own information to be public, but his privacy concerns don’t extend to anyone else. In a letter he signed onto last month, Rokita opposed a federal proposal to block state officials from accessing information on residents’ reproductive health care services obtained outside the state.

Experts who reviewed Rokita’s NDA said it raised concerns about constraints on free speech and about the public’s right to know about the conduct of public business.

“The (NDA’s) definition of ‘confidential information’ seems designed to shield public officials from scrutiny,” contract law expert Michael Mattioli told IndyStar. “And that’s an essential part of living in a well-functioning democracy.”

Rokita declined to be interviewed. Instead, an office spokesperson sent a statement: “For any professional or executive, signing an NDA is a conventional office practice that has worked well to protect clients and employees alike.”

I haven’t practiced law lately, but in my lawyering days, signing a non-disclosure agreement was unheard of–and when I asked friends who still practice, most confirmed that  it remains very unconventional.

According to the Star,

The contract essentially gives Rokita and the AG’s office control over what an employee can say, both during and after employment. The stated rationale is that the employee will be “privy” to information that could be protected by laws and state professional conduct rules.

Typically, when information is protected by professional conduct rules, professionals can be trusted to observe those rules. An NDA isn’t needed. As the Star correctly notes, state and federal laws already protect confidential information received by public employees.

But it doesn’t stop there. It says Rokita and his office ultimately have the power to decide what information fits the definition of “confidential.”

That includes “all material, non-public, information, written, oral, or electronic … that is disclosed or made available to the receiving party, directly or indirectly, through any means of communication or observation …” The category also shields “personal or private information” about Rokita and his staff.

No other Indiana State office requires NDAs, although several deal in as much “sensitive” information as Rokita’s. AGs in most other states haven’t found the practice necessary.

Rokita’s overweening ambition probably plays a role– his appearances on Fox News and a trip he took to the U.S.-Mexico border last year have been widely panned as “headline shopping.” Given Rokita’s appetite for higher office, the sort of disclosures that might emerge–his “side hustle” comes to mind–would be distinctly unhelpful.

One ethics professor found the contract a “reprehensible attempt to intimidate.”

Makes one wonder what Rokita’s so intent on hiding….

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Speaking Of Blowhards And Scoundrels..

In yesterday’s post, I argued that, when politics is considered the refuge of blowhards and scoundrels, blowhards and scoundrels are who it will attract. Which brings me to Todd Rokita–elected in November to be Indiana’s Attorney General.

I have previously posted about Rokita–several times, in fact. In 2013, when he was in Congress, I explained why he was more embarrassing than then-Governor Mike Pence. In 2014, I explained why he was dangerous and anti-American. Also in 2014, I highlighted his comparison of himself to Earl Landgrebe, whose most famous quote, “Don’t confuse me with the facts. I’ve got a closed mind” was perhaps more telling than he had intended.

And just last year, I posted a compendium of Rokita’s positions and suggested that Indiana had once again elected a guaranteed embarrassment to the position of Attorney General. (We have a habit…)

That prediction has already been proved correct–and it’s only February!

On Valentine’s Day, Rokita sent out a “tongue in cheek” Tweet supporting Trump’s allegation that the election was stolen from him. As the Star described it, the tweet “featured a meme with floating red hearts and the text ‘You stole my heart like a 2020 election.’ Below the text is a cartoon-like portrait of Donald Trump.”

Twitter declined to see the “tongue in cheek” humor, blocked activity related to the tweet, and warned that it posed a danger of inciting violence. This was no aberration; Rokita has been an all-in Trumper,  urging the Supreme Court to hear election challenges that 60 courts–and every competent lawyer who read them– found bogus.

But hey! You can be a competent lawyer, or a culture warrior–and in Indiana, culture war is what gets you elected.

But all of that history pales against the discovery that Rokita is still employed by the health benefits firm he worked for prior to the  election, notwithstanding the fact that he now has a “day job” (which most lawyers consider a 24-hour-a-day job) as Indiana’s Attorney General. A day job that coincidentally gives him investigative jurisdiction over what we now know is his “other” job…

Indiana Attorney General Todd Rokita is moonlighting as a strategic policy adviser for the health benefits company that has employed him since 2019, his office confirmed Tuesday morning, raising questions about whether the arrangement violates state ethics rules.

An Apex receptionist said Rokita was still employed with Apex Benefits and transferred a reporter to his extension. Rokita’s Apex email and voicemail inboxes were still functioning Tuesday morning.

According to his job description, Rokita “advises Apex and its growing roster of clients who employ thousands of hard-working people on public policy initiatives, internal corporate strategies, and employee benefits compliance outcomes. In the best interest of the company’s clients, he also collaborates with industry experts to drive positive transformation of healthcare and benefits issues.”

Aside from the inherent conflict of interest, there’s another small problem: Rokita’s dual employment violates even Indiana’s weak ethics law. (You’d think a lawyer–especially the state’s lawyer–might have noticed that.)

Indiana’s Ghost Employment Rule —found at 42 IAC 1-5-13–is summarized by the office of the Inspector General as follows: “Don’t work on anything outside your official job duties.”

If that seems too complicated to understand, the IG offers some helpful examples:

  • In addition to your employment with the State Library, you also edit drafts of books for a publishing company. You may not review these drafts while engaging in your official duties during working hours.
  • You are an employee of the Criminal Justice Institute who would like to take advantage of State Personnel’s Community Service Leave to volunteer at a local elementary school. You may volunteer at the school in accordance with its guidelines since it has been permitted by a written agency regulation.
  • You work as an administrative assistant for the Civil Rights Commission. You may not assist the director on a case he has taken on pro bono for a non-profit legal service during your working hours since it is not part of your official duties.
  • You are a Family & Social Services Administration employee. You leave work early one afternoon to have your nails done. You may not claim a full day’s pay on your timesheet.
  • You are an Indiana State Police Officer. Your cousin is having a birthday party when you are scheduled to be on patrol. You may not stop patrol and attend the birthday party instead.

Granted, the examples don’t include “You are the Attorney General of the State of Indiana. You may not simultaneously function as an employee and paid advisor for a private firm while collecting a salary as Attorney General.”

Rokita evidently did have some concerns about this patently unethical arrangement: he hired the Inspector General to join his office (the Attorney General office, not the Apex office) in a senior (and undoubtedly well-compensated) position, after allegedly obtaining from that individual’s office an opinion that his conduct didn’t violate Indiana’s seemingly straightforward ethics statute…an opinion that, for some reason, his office declines to make public.

Rokita is evidently as big a fan of Trump’s swamp as he is of Trump’s Big Lie…

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I’m Conflicted

A recent decision by the Illinois Attorney General has thrown me into one of those “On this hand…but on the other hand..” internal conflicts.

The Attorney General and another Illinois prosecutor have announced that they will not defend that state’s ban on same-sex marriage against a challenge being brought by couples whose application for marriage licenses were denied. Their reasoning was that they believe the ban to be unconstitutional under the equal protection clauses of both the state and federal constitutions.

I agree with that conclusion, but that doesn’t resolve the conflict.

The duty of an Attorney General is to defend the laws of his jurisdiction. It’s the duty of the judiciary to decide whether those laws are proper. Separation of powers is one of the most fundamental elements of American government, and our courts depend on the adversarial system to sharpen clarify the questions presented. And even criminals and legislators (whose ranks are not always as distinguishable as we might wish) deserve representation. It is the job of Attorneys General to defend laws whether they personally believe those laws are fair or prudent.

On the other hand, criminal prosecutors who proceed with cases against people they know to be innocent violate their oaths of office, and their duty to justice, and we rightly condemn them. They aren’t duty bound to prosecute everyone initially charged with a crime; we expect them to apply their best judgment and to proceed only when there is a substantial likelihood of guilt.

Our elected officials are sworn to uphold the Constitution. When they are convinced that a particular enactment cannot survive constitutional scrutiny, must they spend time and resources defending it? What is the weight of evidence required before such a decision is appropriate?

There are also questions of credibility: wouldn’t the people of Illinois be more likely to accept a decision by a court than one by the state’s chief lawyer?

I agree with the Illinois AG about the ban’s unconstitutionality. I’m not entirely sure I agree with her decision to forgo its defense.

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