A fight over document discovery is brewing in a House ethics investigation into an embattled Republican lawmaker.
It’s the first public flare-up between the two parties in a probe that’s dragged on even as the Legislature has suspended its session.
At the heart of the fight are as-yet unfulfilled requests for documents from both sides. In one corner, the House Ethics Committee has issued a subpoena to Rep. David Cook, seeking records and testimony relating to a pair of complaints filed against the Globe legislator that stem from an alleged affair he had with a lobbyist for the agricultural industry.
In the other corner, Cook’s attorney wants to know what evidence the committee has in its file before her client agrees to sit down with investigators.
And while Cook’s attorney, Carmen Chenal, said in a statement that she’ll fulfill at least part of the House’s request by the end of April 3, the House is disinclined to share any documents that are part of an ongoing investigation — something over which Chenal is threatening to sue.
“It is unfair for Rep. Cook to attend an interview with the committee, without any knowledge as to what documents the committee has in their investigative file,” she said in the statement. “Should the Committee not fulfill its legal obligations to produce the overdue documents requested, we will have no choice but to take the Committee to court and force it to comply.”
Rep. John Allen, R-Scottsdale, who’s leading the House investigation, subpoenaed Cook earlier this week, he confirmed. He said the step was necessary because Cook had failed to comply with a previous request for information relating to the case. And if Cook doesn’t respond to the subpoena, Allen said that he’ll “cross that bridge when we come to it.”
Allen declined to reveal what’s in the subpoena.
But Chenal, who in her statement accused the committee of engaging in a “fishing expedition,” refutes this version of events. She said that Cook “hand delivered 158 pages of documents on his own quite some time ago,” but that the committee still issued a subpoena for a separate cache of documents “with a short leash of time to respond.”
Those documents include some that Cook already shared with the committee or those that are already available to the committee as they exist on the House’s own email system, she insisted. Any documents that aren’t included in her response to the subpoena are either not available or not germane, she said.
Allen, through House Republican spokesman Andrew Wilder, would not comment on the ongoing investigation.
It’s not uncommon for investigators to subpoena for documents they might already have if they think the subpoena would yield a larger pool of information, said Jim Barton, an attorney with the Torres Firm. “The problem with [Chenal’s] argument is, why would it be burdensome if you’ve already produced them,” he said.
The bigger dustup may be over Chenal’s attempt to get documents from the House. In a typical court case, both parties in a suit can obtain evidence held by the opposing party — even if that evidence is exculpatory — but the House isn’t a court of law, and it has its own rules governing document discovery, Barton said.
Wilder, the House spokesman, said the chamber’s general policy is not to release documents relating to an investigation until it’s complete.
“I don’t see the House instilling much confidence in the process by trying to keep these documents secret,” said Tim LaSota, an attorney who’s been critical about the probe’s choice of outside counsel, an attorney named Mark Kokanovich. “Even if it’s in an investigative file, these documents are public records and subject to public inspection.”
LaSota took issue with the fact that Kokanovich penned opinions calling for the prosecution of President Trump over the contents of the Mueller Report, calling him a “partisan Democrat.” The committee has defended Kokanovich, who also worked on the team that investigated Prescott Republican Rep. David Stringer, who resigned from the legislature following the revelation of sex crimes charges made against him in the 1980s.
If the two parties do go to court, Chenal has to convince a judge that it’s in the public’s interest for the House to set aside its policy and produce the documents in the investigative file. Such documents can in some cases be exempt from public records law.
But LaSota said that if there are doubts, they should be resolved “in favor of the public.”
“I agree with Miss Chenal,” he said. “I would not sit down for an interview [without knowing what evidence the probe has]. That’s a reasonable condition.”
This sort of procedural conflict is typical of fights over document discovery, said Barton. And it appears to be typical of Chenal’s legal strategy.
The Scottsdale-based attorney also defended Stringer in his probe. In the Stringer investigation, the committee subpoenaed him for records from a Washington, DC, Bar examination of the allegations made against him in the 1980s, among other documents. Chenal said she couldn’t fulfill the subpoena because she obtained a protective order from a judge, shielding the document from public examination.
At the time, she also accused the House probe of “fishing all over the place.” When it became clear that Stringer would not be responsive to the House subpoena, Chenal requested a restraining order to protect Stringer from expulsion by his colleagues. He eventually resigned.
Whether she’ll be more successful in her defense of Cook remains to be seen.
“The fishing expedition cliche is not particularly powerful,” Barton said.