Former Gov. Phil Bryant, whose administration saw the misspending of tens of thousands and thousands of federal welfare funds, is again asking a judge to throw out a subpoena against him within the state’s ongoing civil case related to the scandal.
A defendant within the civil case filed a subpoena in early October for a big swath of records from Bryant, including his texts with former NFL quarterback Brett Favre a couple of concussion drug company that received $2 million in stolen welfare funds.
In a filing Friday, Bryant argued that his personal text messages are protected under executive privilege, and that the subpoena should either be thrown out or that any records he provides be placed under a protective order.
He made a virtually equivalent response in September to a separate subpoena for his communication related to the brand new volleyball stadium at his alma mater, University of Southern Mississippi, which was built using $5 million in welfare funds.
The most recent subpoena comes from Austin Smith, the nephew of convicted former welfare director John Davis. Smith is accused of taking nearly $430,000 in welfare funds under contracts he allegedly didn’t fulfill. He has argued in response to the criticism against him that if he’s chargeable for welfare misspending, Bryant is simply too, and that the previous governor needs to be added as a defendant. Bryant has rejected this notion.
“Smith mustn’t be allowed to make use of this proceeding as a political tool to harm the status and business of a former politician with whom he disagrees on matters of policy,” Bryant’s motion reads. “A protective order would allow Smith to make use of the topic documents for legitimate purposes within the context of this suit, and would disallow him from using them to grandstand within the press with baseless accusations and politically-motivated innuendo.”
Hinds County Circuit Court Judge Faye Peterson has yet to rule on these and several other other motions within the sprawling civil case, and defendants have asked for a hearing in January to resolve them.
The Mississippi Department of Human Services civil case targets 38 individuals or corporations – including Favre, the concussion drug company Prevacus and Prevacus founder Jake Vanlandingham – in an try to claw back roughly $24 million in misspent welfare funds. The purchases targeted within the suit make up a fraction of the nearly $100 million in improper spending that State Auditor Shad White uncovered in 2020.
Smith also subpoenaed Bryant for any of his communication related to several other welfare-related projects or alleged events first reported by Mississippi Today, including a fitness program by trainer Paul Lacoste, a virtual reality academy by Lobaki Inc., promoting campaigns with conservative talk radio station SuperTalk and “Families First,” treatment for Bryant’s nephew that the governor and his welfare officials facilitated, and the firing of Debbie Hood, wife of former Democratic candidate for governor Jim Hood.
Out of 26 items requested within the subpoena, Bryant said he didn’t have responsive records for 11 of them.
Bryant denied having any communication, because the subpoena requests, between himself and State Auditor Shad White regarding “whether you might be chargeable for misappropriation by MDHS.”
He said he doesn’t possess any communication with the previous WWE wrestler Ted DiBiase or his two sons, who received over $5 million in welfare funds, about payment to the wrestlers.
Bryant also denied having any communication regarding:
- Gov. Tate Reeves’ efforts to acquire funding for Paul Lacoste, whose foundation received $1.3 million in welfare funds
- The tech company Lobaki, which received $795,000 in welfare funds
- The termination of Debbie Hood as an worker of Family Resource Center
Nevertheless, Bryant said he does possess records and communication surrounding Prevacus – much of which Mississippi Today published in its series “The Backchannel” – including documents “relating in any method to any ownership interest in Prevacus that You (Bryant) had, have, or that was proposed or suggested to You by any person.”
He also confirmed he has communication about:
- Organising a gathering with Paul Lacoste to discuss his foundation’s contract
- Paying for promoting on conservative talk radio station SuperTalk, which received $600,000 in welfare funds
- Securing treatment for his nephew Noah McRae
- Promoting services for the welfare department or “Families First for Mississippi”
“Lots of these things are privileged and shielded from discovery. Other responsive items usually are not privileged, but needs to be produced subject to the entry of a protective order that preserves the integrity of those proceedings,” the motion reads.
The rationale for executive privilege – the flexibility for the nation’s top official to withhold information from the general public – is that the communication is usually “so candid or personal in nature that public disclosure is probably going in the long run to stifle honest and frank communication,” in accordance with the 1980 appeals court opinion in Coastal States Gas Corp., v. Dep’t of Energy.
Bryant’s attorney Billy Quin used the legal precedent in Watergate to make his argument. In that case, President Richard Nixon infamously refused to show over nine tape recorded conversations within the White House, claiming executive privilege. In response, the court found that the president’s communication was privileged, but with the caveat that it could possibly be compelled by a “sufficient showing of need.”
The court struck down Nixon’s claim of privilege “because the knowledge sought was relevant and vital to the continued Watergate investigations.”
Mississippi law doesn’t contain executive privilege protections for the governor, nor has the Mississippi Supreme Court addressed the problem. Though courts in other states, Quin identified, have adopted similar privileges for governors.
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