Attorney General Austin Knudsen testifies before Judicial Standards Commission
By Tom Lutey for Montana Free Press
Montana Attorney General Austin Knudsen, under review Wednesday for allegedly undermining the state Supreme Court in 2021, said he might have done things differently in hindsight, but stood by his criticisms of the High Court.
Knudsen faces 41 counts alleging that he or his Department of Justice attorneys violated the state judicial system’s rules of professional conduct in 2021 while representing the Legislature in a subpoena-power battle with the judiciary. At the core of the complaint is a letter from Knudsen’s office informing the Supreme Court that the Legislature would not recognize or abide by a court order on the matter. Later, Knudsen said the court “overlooked and misstated material fact” and accused the justices of “actual impropriety.”
Broadly, the charges allege that the attorney general and the state lawyers he leads violated rules “intended to preserve public confidence in the fairness and impartiality of our system of justice in Montana,” according to Missoula attorney Tim Strauch, who prosecuted the case for the Office of Disciplinary Counsel.
In filing the complaint against the Republican attorney general, Strauch said Knudsen violated the oath all attorneys are required to observe, and that disbarment should be a possible consequence.
“This letter was undignified of our profession and particularly undignified of the chief legal officer of this state, wasn’t it,” Strauch asked while examining Knudsen.
“No,” Knudsen replied. “This letter was meant to openly assert our client’s position that there was no valid obligation to comply with that court order. That was the position of our client, my client. A co-equal branch of government.”
Republican leaders in the 2021 Legislature had attempted to obtain judiciary emails, some of which showed judges throughout the system participating in a poll concerning a state Senate bill that empowered the governor to make judicial appointments that at the time were done by a commission.
Court Administrator Beth McLaughlin asked Supreme Court justices to intervene and block the emails from being released under subpoena by the Legislature. The justices obliged in April 2021 with a rare weekend order to lock down the emails. Knudsen argued that the justices working on the weekend to grant the order, service not available to other Montanans, was disqualifying.
Between 2,000 and 5,000 emails were handed over to the Legislature via Knudsen’s office. The emails quickly began appearing on websites. McLaughlin had argued that some of the emails likely contained private information protected from public disclosure.
The state Supreme Court eventually ordered the attorney general to return the emails “immediately,” but Knudsen didn’t comply for eight months, arguing that he was taking the Legislature’s case to the U.S. Supreme Court and didn’t have to surrender the emails until after the nation’s highest court weighed in. The U.S. Supreme Court declined to take the case.
“If I’m being honest, in hindsight, I think a lot of things could have been done different here, and probably should have been done different here,” Knudsen testified. “If I had this to do over, I probably would not have allowed language like this, so sharp, to be used. But we, and our client, truly felt that we were in an absolutely novel situation of constitutional emergency and this is the language that went out.”
Strauch countered that when the Office of Disciplinary Counsel inquired about the way the attorney general was responding to the Supreme Court, Knudsen said he fully supported what his DOJ lawyers were up to.
Strauch rested his case against Knudsen at the end of the working day Wednesday, but left the door open to question McLaughlin Thursday morning.
Knudsen’s defense team, which argued Wednesday that the attorney general’s obligation was to represent the interests of the Legislature, planned to examine two state legislators Thursday before the case wraps up.