Legal Expert: Vermont Governor May Not Claim Executive Privilege to Shield Jonathan Gruber From House Subpoena

Legal Expert: Vermont Governor May Not Claim Executive Privilege to Shield Jonathan Gruber From House Subpoena

A showdown between the United States House of Representatives and Democratic Vermont Governor Peter Shumlin may be in the works over Shumlin’s claim of executive privilege over documents related to controversial MIT economics professor Jonathan Gruber’s contract with the state of Vermont.

Whether such a showdown materializes over the next few weeks, however, will depend on decisions Gruber has apparently not made yet.

On Friday Darrell Issa (R-CA), departing Chairman of the House Oversight and Government Reform Committee, subpoenaed Gruber to produce all records from his Obamacare-related contracts with the federal government and all of the state governments with which he has received contracts.

Vermont, where Gruber has a $280,000 contract to model the state’s proposed single-payer system–the sort of “state health care system innovation” that’s statutorily encouraged by Obamacare–is one of those states where Gruber’s contract and work product are covered by the House subpoena.

But the state of Vermont has asserted executive privilege in refusing the release of some documents (in a lawsuit filed by Democratic State Representative Cynthia Browning in May requesting the release of planning documents) and in the redaction of 2,400 pages emails that are part of Gruber’s work product with the state that were released last week in response to a public records request from the Vermont Press Bureau.

An inquiry to the Vermont Attorney General’s office by Breitbart News on Friday indicates that the state of Vermont will neither support nor impede the House subpoena of documents from Gruber. The state, however, appears unwilling to open up the redacted portions of those 2,400 pages of emails.

On Friday, William Griffin, Chief Assistant Attorney General for the state of Vermont, responded to our question on that issue:

Mr. Leahy,

This is in reply to your message below, sent to me and to others in the Vermont Attorney General’s Office.

Your message indicates that Representative Issa issued a subpoena to Dr. Jonathan Gruber, directing Dr. Gruber to produce documents to a Congressional Committee.  You ask whether the State of Vermont will “allow Dr. Gruber to provide these documents” to the Congressional Committee.   The Attorney General’s Office is not aware of any State of Vermont undertaking to allow Dr. Gruber to provide documents to Congressional Committees or to prevent him from doing so.

My understanding is that you and others have made access to records requests asking the State of Vermont to produce public records relating to Dr. Gruber.  My understanding is that the State has identified documents responsive  to these requests and will be producing public records in response to those requests.


William Griffin

Chief Assistant Attorney General

Should Gruber choose to comply narrowly with the House Oversight and Government Reform Committee’s subpoena by providing only those documents that have been approved and redacted by the state, the Committee will likely consider Gruber’s submission to be insufficient. It would then be up to Gruber to ask the state to “unredact” that portion of the 2,400 pages of emails that are redacted, or to provide the committee with his own copies of the original, unredacted emails.

Should Gruber fail to produce these documents — citing the executive privilege claims made by Governor Shumlin — a legal confrontation between the House of Representatives and the Governor of Vermont could well ensue.

Congress will not recognize a state’s assertion of executive privilege,” Brady Toensing told Breitbart News. Toensing is a former legislative aide to U.S. Senator Warren Rudman (R-NH) and a Burlington, Vermont based attorney with expertise in executive privilege. He has represented clients in numerous high-profile Congressional investigations, including Ruby Ridge, Waco, and the Clinton White House pardon. 

“It simply does not apply. The state has no say in the matter.  If Gruber does not comply, he will be risking criminal contempt,” Toensing says. “Congress has a broad and inherent Constitutional prerogative to investigate anything that enables it to carry out its legislative function.”

The federal legislature, Toensing added, “only recognizes Constitutionally-based privileges. And a governor’s common-law claim of executive privilege is not Constitutionally-based.”

Whether or not a legal dispute between the House of Representatives and Governor Shumlin is on the horizon depends on the next steps Gruber takes.

Gruber has not yet responded to Breitbart News’s request for comment. It remains unclear if he will comply with the House subpoena or risk facing criminal contempt charges.

The right course of action for Gruber, Toensing maintains, is to comply with the House subpoena.

“Professor Gruber should think long and hard about how he responds and whether he wants to risk criminal contempt of Congress by failing to comply. This is no time for glibness,” Toensing told Breitbart News.

But if Gruber fails to comply with any or part of the House subpoena, Toensing believes Governor Shumlin would be unlikely to win a battle over executive privilege with Congress.

“Most certainly, any equitable claim Governor Shumlin might have had to try to hide this information from Congress was waived when he used hundreds of thousands of taxpayer dollars to pay Professor Gruber and failed to properly oversee that work,” Toensing said.


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