Top staffers for Governor Terry Branstad knew more than a month ahead of time that Iowa Attorney General Tom Miller had determined Kim Reynolds would not have the authority to name a new lieutenant governor after becoming Iowa's head of state.
Records released by the Iowa Attorney General's office undercut numerous public statements by Reynolds and other Republican leaders, which alleged or implied Miller had blindsided the administration with a sudden reversal of his earlier view.
Documents support Miller's comments on May 1 about the exhaustive legal and historical research informing his 23-page response to independent State Senator David Johnson. Despite accusations made by many GOP politicians, records reveal no effort by any Democratic officials to influence Miller's views on succession questions.
On the contrary: if the attorney general faced any political pressure to change his stance on Reynolds' constitutional authority, available information suggests that pressure came from the governor's office.
A RECORD OF INTERNAL DELIBERATIONS
On June 9, the Iowa Attorney General's office released more than 3,000 pages of records in response to a request from the Republican Party of Iowa. I received the same file, having submitted my own records request pertaining to the formal opinion on succession. You can look through the documents here:
Be warned: hundreds of pages are irrelevant or redundant. The Iowa GOP's records request (found on page 3 and 4) was in part a publicity stunt designed to support the narrative Republicans were pushing immediately after Miller announced his conclusions. A May 3 GOP press release about the so-called "stunning," "dramatic and coincidentally timed reversal" was rewarded with a full Des Moines Register article promoting state party chair Jeff Kaufmann's assertion that Miller was seeking partisan political advantage.
I thought the Attorney General's office might decline to produce many of the documents, citing exceptions to the state's open records law for attorney work product or for "preliminary, draft, speculative, or research material." However, they released several versions of Miller's opinion. Chief Deputy Attorney General Eric Tabor emphasized in cover letters to the Iowa GOP and to me that "this Office is not establishing a precedent with respect to draft attorney general opinions and does not waive its right to consider withholding draft attorney general opinions in the future. Iowa Code section 22.7(65) is certainly less than clear and has not been interpreted by the courts."
The two most complete drafts begin on pages 19 and 41 of the large file. Unfortunately, those drafts are undated; they were not attached to an e-mail but retrieved from an "L-drive" containing word files. The final opinion published on May 1 incorporated minimal substantive changes: a few paragraphs deleted, some sentences added or passages moved from one section to another.
Solicitor General Jeffrey Thompson supervised the work on the opinion. Two assistant attorneys general, David Ranscht and Meghan Gavin, did most of the research. Thompson is out of the office and won't be able to answer my follow-up questions until he returns on June 22, Tabor told me on June 12. I thought Ranscht or Gavin would be able to clarify when the undated versions were written, but communications director Geoff Greenwood said he could confirm only that "According to the properties data field associated with the two drafts, both documents were last modified on April 25."
Dated records show that staff thinking on Reynolds' title and powers was consistent from early February on, guided by wording in Iowa's and other state constitutions, case law, and attorney general opinions about similar scenarios.
Senator Johnson wrote to Miller on February 1 seeking answers to nine questions related to the succession. Five days later, Ranscht sent Thompson and Gavin a 21-page memo (beginning on page 82) outlining his research on what other states have determined regarding a lieutenant governor's powers upon the governor's death or resignation. Miller's opinion cited seventeen Iowa court decisions, one U.S. Supreme Court decision, and state Supreme Court rulings or attorney general opinions from Wisconsin, Oklahoma, Michigan, Arkansas, Montana, Oregon, Washington, Arizona, California, Nevada, New York, North Dakota, Wyoming, Idaho, and Utah. Ranscht summarized most of those cases in his February 6 memo.
The same document recounted the four times Iowa lieutenant governors assumed the governor's powers, noting that none had appointed a new lieutenant governor. Ranscht found historical records stating that the longest-serving of those, Joshua Newbold, did not name a new lieutenant governor in 1877 "because the lieutenant governorship was not vacant."
Ranscht mentioned in a February 10 e-mail to Thompson,
I also realized that Article IV, section 19 states the people further down "act as" governor, while "devolve" applies only to the lieutenant. [...] Several other states noted that the difference in language suggests the lieutenant governor is not merely acting governor.
Thompson concurred with that reasoning and commented (pages 894-5), "This is great work. Everything we need to make the case. I've given it to Eric [Tabor] so he can see the scope of support for our position."
Ranscht fleshed out the research in a follow-up memo dated February 24 (beginning on page 103). The conclusions listed on its last page were the same ones Miller announced on May 1: Reynolds would be the governor after Branstad's expected resignation. But since she would hold that office by virtue of her position as lieutenant governor, there would be no vacancy in the number 2 office, and therefore she would not be able to appoint a new lieutenant governor.
Miller has admitted he didn't initially embrace this reading of the constitution and case law. After all, Greenwood had told many journalists on December 12,
Our office has researched the law and consulted with the Governor’s office. We concur with the Governor’s conclusion that, upon the resignation of Governor Branstad, Lt. Governor Reynolds will become Governor and will have the authority to appoint a new Lieutenant Governor.
The records released last Friday do not indicate when Miller agreed to support the findings of Thompson, Gavin, and Ranscht. Tabor told me my question about the timing will have to wait until Thompson returns to the office on June 22.
One thing is clear: by the end of March, Miller had come around to the view that Iowa's constitution did not authorize Reynolds to appoint a new lieutenant governor.
Also by the end of March, the governor's staff knew the broad outlines of the attorney general's opinion.
AN EARLY HEADS UP FOR THE BRANSTAD ADMINISTRATION
Branstad's senior staff sought the attorney general's support for the administration's position on the transfer of power. On December 7, the same day the governor confirmed his appointment as U.S. ambassador to China, the Des Moines Register's Brianne Pfannenstiel reported on uncertainty over whether Reynolds would become governor or "acting governor." Greenwood told her, "We're going to have to review this and confer with the governor’s office."
Two days later, Branstad's legal counsel Larry Johnson, Jr. asked to meet with Thompson (page 947). A few hours after that meeting, he e-mailed the solicitor general (page 1354), attaching oaths of office that three previous lieutenant governors had taken upon being sworn in as governor. Johnson added that his research in the state archives turned up "no documents" suggesting "the lt. governors who had the powers and duties of the governor devolve upon them had any other title than Governor or Governor of the State of Iowa."
The day after Senator Johnson requested a formal opinion, Larry Johnson sent Miller's chief deputy Tabor the same oaths of office he had previously e-mailed to Thompson (page 1168).
As the opinion took shape, Miller's staff kept Branstad officials in the loop. Thompson e-mailed the governor's lawyer on March 28: "Do you have time in the next few days for a follow-up discussion?" (page 1295) Branstad's chief of staff Michael Bousselot arranged a meeting for March 30. Larry Johnson e-mailed a few days later asking Thompson for citations on "the ten cases you were referring to last week." The solicitor general responded on April 5 with a collection of cases and a couple of attorney general opinions. "There are others but these are most representative of the field." (page 1100)
I have been asking about additional in-person or phone conversations among staff for Miller and Branstad. Thompson's March 28 offer implies there had been some earlier discussion. A text message from Gavin to Ranscht refers to unnamed "governors people" coming to the Attorney General's Office. Tabor told me that meeting occurred on April 26 but said he could not answer questions such as: Who was present? Did the governor's staff hear a summary of the opinion, or were they allowed to review a full draft? Did Branstad's representatives mostly listen, or did they try to persuade Thompson and/or Miller to alter their conclusions?
Thompson has been unavailable since I received the records. Larry Johnson declined to answer my questions, suggesting I ask the governor's communications staff. Reynolds' spokesperson and legal counsel have ignored my repeated e-mails. Likewise, no reply from Bousselot, who just started a new job.
Branstad officials appear to have engaged in a last-minute effort to influence Miller. An April 25 e-mail from Associated Press reporter Ryan Foley to Greenwood indicates that Senator Johnson had been led to believe Miller would issue the opinion the previous week (April 20-21). The senator confirmed that account, telling me on June 12,
throughout the month of April I made regular weekly requests to a deputy AG at the Capitol, in person, for when an opinion would be issued. [...] Each time I asked that deputy, I was told "maybe next week."
My thinking grew to imagine an opinion would wait for the Legislature to adjourn sine die [for the year].
Around mid-April a rumor emerged that a draft of the AG's opinion was being "walked around the office."
Attorney General's staff have not answered my questions about the delay. Speaking to the Des Moines Register's Jason Noble on May 3,
Spokesman Geoff Greenwood defended the opinion as was [sic] based on the law rather than politics, and said its release was based in part on a time frame established by the governor's office.
"Our office was prepared to release the opinion last Thursday [April 27]. We held off at the request of Branstad-Reynolds administration staff, who requested that Attorney General Miller meet with both the governor and lieutenant governor late Friday," Greenwood said. "Following that meeting, our office released the opinion the next business day, Monday [May 1], which is at least several weeks prior to Governor Branstad’s anticipated resignation."
The irony is rich: a chorus of Republicans accused Miller of staging a partisan stunt the day before Branstad was to appear before the U.S. Senate Foreign Relations Committee. Yet the attorney general planned to make his views public four days earlier. He postponed his press conference in order to hear Branstad and Reynolds out. They repaid the favor by trashing Miller again and again and again.
WHY DID REYNOLDS MISLEAD?
A second irony: Republicans requested records with a view to portraying Miller as a partisan hack.
Instead, we now see that Reynolds stretched the truth while trying to score political points off this controversy. A May 1 press release quoted her as saying,
In December, Attorney General Tom Miller researched the law and concurred with the Secretary of State and our office that, upon Gov. Branstad’s resignation, I become Governor and have the authority to appoint a new Lt. Governor. Since then, I’ve been moving forward with that understanding. Now, five months later, just one day before Governor Branstad testifies before the U.S. Senate Foreign Relations Committee, the Attorney General has reversed himself, but the law hasn’t changed.
Reynolds didn't suddenly find out about Miller's change of opinion "five months later." She knew where he was leaning by the end of March at the latest.
Reynolds kept pushing the "nothing has changed" narrative at a May 1 press conference and in an interview with WHO-TV's Dave Price.
The timing is interesting. Why five months later? Why right now? I don’t believe anything has changed, and I really believe people are sick of politics, and I’m focused on doing the job, and I look forward to serving Iowans as governor of this great state. […]
I do honestly believe that Iowans expect a governor and a lieutenant governor, and they’re just tired of the political games that they see happen in politics today.
Political games like pretending Miller reached this conclusion for no reason, when you knew the attorney general's opinion was in the works for months, grounded in extensive research? Branstad's counsel received about a dozen citations on April 5.
The sob story continued in the lieutenant governor's interview with Kathie Obradovich a few days after Miller's press conference.
I had my legal counsel tell me one thing and then five minutes later, he reversed from what he told me in December, and so, you know, it just–that causes some problems because I laid out my plan and started the process based on what he told us in December.
Leaving aside the fact that the attorney general is not the governor's legal counsel, why didn't Reynolds adjust her plans once she learned Miller had concluded she didn't have the authority to appoint a new lieutenant governor? Was she hoping Branstad staffers could talk the attorney general into backing off?
Why did Reynolds repeatedly give reporters the false impression that she had been counting on what Miller said in December, when Thompson went out of his way to give advance notice?
Staff for Reynolds have not answered these and other questions.
NO PRESSURE FROM DEMOCRATS
In an April 19 text message exchange (page 511), Gavin said the latest edits to the draft opinion show "our effort to apply well settled rules of construction to these questions. We are process (not result) oriented." Ranscht replied that they would "probably be accused of" being results-oriented "regardless." Events bore out his prediction.
Yet the correspondence among Thompson, Ranscht, and Gavin indicates no concern about the political implications of Reynolds' future title or who might become her new lieutenant governor. Equally important, records reflect no effort by any Democratic lawmakers or party leaders to guide Miller's conclusions.
I could have told the Iowa GOP that Democratic officialdom took zero interest in my writing about past historical practices and what the state constitution says about succession questions.
Nevertheless, Branstad slammed the "politically motivated opinion," while his spokesperson accused the attorney general of ignoring a state law "just because the democrats do not control the Governor’s office."
Iowa GOP state chair Kaufmann amplified the criticism of Miller's "politically tainted press conference [...] where he radically reversed his position." A May 3 press release featured grade-A grandstanding: "the public has a right to know who lobbied him on this issue, what public officials were for and against this stunning reversal, and what outside influences leaned him to take this politically motivated action."
Hoping to turn up evidence that partisan operatives unduly influenced Miller's opinion, Republicans asked for records involving any current or former Iowa Democratic Party leaders and named some individuals, including:
• Iowa Senate Minority Leader Rob Hogg;
• First Assistant Attorney General Kevin McCarthy, a former Iowa House majority leader and minority leader;
• Bill Brauch, a former director of the Consumer Protection Division in the Iowa Attorney General’s Office, now an Iowa Democratic Party State Central Committee member and Democratic chair for the third Congressional district;
• Assistant Attorney General Nathan Blake, a 2014 candidate for the Iowa Senate who said earlier this year he might run for secretary of state;
• Assistant Attorney General Rob Sand, seen as a possible future candidate for statewide office;
• Assistant Attorney General John McCormally, a former Iowa Democratic Party staffer who has worked on several campaigns and serves on the party's State Central Committee.
Because of my recurring interest this subject, the GOP also requested documents mentioning me, as well as correspondence between the Office of Attorney General and two of my sources for this post, Mark Lambert and Marty Ryan.
In addition, the GOP's request named Gary Dickey, who researched succession questions as legal counsel to then Governor Tom Vilsack in 2004. Dickey had been quoted in media reports agreeing with Miller's determination that Reynolds would have no vacancy in the lieutenant governor's office to fill. (He disagreed with the first part of the formal opinion; in his view, Reynolds is "acting governor," performing the governor's duties without holding the office.)
You can go through the 3,061 pages yourself or take my word for it:
Hogg, Brauch, and Dickey had no correspondence about succession questions with anyone in the Attorney General's Office.
No past or current Iowa Democratic Party official weighed in on this issue either.
Ryan didn't e-mail Miller's staff at all during this period.
McCarthy, Sand, Blake, and McCormally didn't try to influence their colleagues' findings on Reynolds' title or powers. Most of the records that mentioned them had nothing to do with the succession. Some contained press releases or Google news alerts referring to Miller's opinion.
I sent a bunch of e-mails seeking further comment from Greenwood or pestering him about when the attorney general would respond to Senator Johnson.
Lambert contacted Greenwood and Tabor a few times in December to share the views he had discussed with me.
WHAT ABOUT MILLER'S DECEMBER STATEMENT?
We've all said things we regret, and no doubt Miller wishes he hadn't authorized his staff to tell the world, "We concur with the Governor’s conclusion that, upon the resignation of Governor Branstad, Lt. Governor Reynolds will become Governor and will have the authority to appoint a new Lieutenant Governor." Greenwood elaborated in a December 13 message to me,
Our office carefully reviewed the Iowa Constitution.
A significant formal attorney general opinion from 1923 states that (in case of death, resignation or removal from office of the governor) the lieutenant governor becomes governor (I attached the opinion and highlighted the pertinent section on page 2).
Case law, statutory, and constitutional analyses from other states are consistent with this provision.
Finally, the Iowa Code supports this position. State law establishes that, the lieutenant governor, after taking office as governor, appoints a new lieutenant governor.
Why didn't the Attorney General's office just say Miller planned to study the matter further? And why didn't their preliminary research reveal what the eventual opinion discussed on page 17?
In answering question one, we noted considerable debate among states which use constitutional language similar to our own ("devolve") as to whether the lieutenant governor "becomes" governor or is something less. Interestingly, however, we found virtually no debate on whether the new governor (or acting governor) can appoint a new lieutenant governor. The widely-accepted answer to that question is no.
Some clues emerged from the records.
As soon as word spread that Branstad was heading to China, Assistant Attorney General Matt Gannon drew up a one-page memo for Thompson and Greenwood on the succession.
Gannon jumped to the conclusion that Reynolds becoming governor would create a vacancy in the lieutenant governor's office, which Iowa Code empowers the governor to fill. Although the constitution supersedes state law, Gannon does not appear to have taken into account constitutional language on succession or the "elective principle," which loomed large in the formal opinion.
Greenwood copied and pasted most of Gannon's memo into a December 7 message to the Des Moines Register's Pfannenstiel (page 1098), who was working on this story.
Meanwhile, Ranscht started looking into how other states had handled a succession. Beginning on page 504, you can find a six-page memo from him to Thompson dated December 7, based on "about 90 minutes of research." Ranscht found that in most other states, the lieutenant governor becomes governor in the event of a permanent vacancy.
By December 8, Ranscht had expanded his analysis to a 12-page memo (beginning on page 518) on succession language in all 49 other states.
For whatever reason, Ranscht wasn't focused in those early days on whether lieutenant governors of other states had appointed new lieutenant governors.
Mark Lambert highlighted this angle in a December 8 e-mail to Greenwood and Tabor: "One more thing, historically, when an Iowa Gov has left office before the end of his term, there has not been a Lt. Gov. appointed." Greenwood forwarded the message to Thompson, who passed it on to Ranscht and Gavin (page 515): "Gotta love Wikipedia. Can we print the cool table?" Lambert had linked to a Wikipedia list of Iowa governors, showing that the lieutenant governor spot remained vacant next to the four governors who assumed the office due to a death or resignation.
Miller could have avoided a lot of grief by considering why no Iowa lieutenant governor who moved into the top job without an election named a new number 2, including Newbold, who served for nearly a year only two decades after Iowa politicians adopted the 1857 constitution.
If Greenwood hadn't blasted out unequivocal support for the Branstad/Reynolds view in December, Republicans wouldn't have been able to hammer Miller's "stunning," "dramatic and coincidentally timed reversal" in May.
The two long draft versions of Miller's opinion ended the same way: "We thank you, Senator, for your dedicated service to the State of Iowa and your keen interest in seeking clarity on these important legal issues."
That sentence was absent from the letter Miller sent to David Johnson on May 1.
I wonder whether the governor's staffers (during the April 26 meeting) or perhaps Branstad and Reynolds themselves (on April 28) saw those words and took offense. The governor's spokesperson criticized Johnson for asking the questions. Reynolds believes Miller should have refused to answer them.
Scrapping the praise for Johnson might have been a way to throw the administration a bone without compromising on any legal points.
That said, the senator deserved to be thanked. Miller's first instinct was to punt. He told reporters on May 1 his staff didn't seek out the task; "we thought we had plenty of work to do here in the AG's office without it." Johnson used his power as a state legislator to insist that someone with authority produce a "thoughtful, detailed, apolitical and fresh analysis" of constitutional questions.
Arguably Reynolds didn't comply with the spirit of Miller's opinion--she appointed Adam Gregg and is calling him lieutenant governor in all official communications. On the other hand, she did acknowledge Gregg has no place in the line of succession spelled out in Article IV, sections 17 and 19. That's a victory for the rule of law.
This is an amazing level of transparency on the drafting of an attorney general opinion. I don't think I've ever seen anything like it.
I can tell you that as a lawyer, countless times I've thought the initial answer to a question was easy, only to find upon further investigation that it's much more complicated. It was surely imprudent of him to give an off-the-cuff answer before studying the issue, but the law has a way of tripping you up like that.
When I submitted the records request, I didn't think they would provide much. More than once I have been stymied by the exemption for drafts and notes when seeking records from the Iowa Board of Regents.
Eric Tabor was very clear (over the phone as well as in his cover letter) that they are not establishing a precedent to provide drafts of any future attorney general opinions.
I've waded through some very long state bills and municipal and county documents in my time, but not three thousand plus pages. Thank you for doing it so we don't have to!