A year ago today, Des Moines Register public affairs reporter William Petroski reached out to the Iowa Attorney General's office, seeking to confirm a tip from a "really good source."
The story never made it into the paper, because it didn't check out. Odds are the misinformation came from someone close to then Governor Terry Branstad and Lieutenant Governor Kim Reynolds.
The impending transfer of power from Branstad to Reynolds was a focal point for Iowa politics watchers during the last week of April 2017. (State legislators had wrapped up their session a few days earlier.)
One big question mark was whether Reynolds would be able to appoint a new lieutenant governor after Branstad resigned. In February, independent State Senator David Johnson had requested a formal opinion on the matter from Attorney General Tom Miller. No one knew what Miller would say or when he would weigh in.
The Attorney General's office later released more than 3,000 pages of documents in response to a GOP request for records related to the drafting of Miller's opinion. The file contained this short e-mail chain from the morning of April 26.
Petroski wrote to communications director Geoff Greenwood and Chief Deputy Attorney General Eric Tabor, "We heard a report late yesterday that the Iowa attorney general's office has been delaying the release of the opinion requested by Sen. Johnson because the attorney general's office anticipates a lawsuit over the succession plans,and therefore will not be issuing a formal legal opinion on this matter. Is this correct?"
Greenwood replied later that morning, "I wouldn't put stock in what you heard. We are not delaying the opinion; to the contrary, we are finalizing it and will release it publicly when it's ready." Petroski quickly responded, "OK. Thanks, Geoff. That was a really good source that told us that; otherwise I wouldn't have asked you."
The tipster could hardly have been more off-base. The Attorney General's office was gearing up to release the opinion on April 27, Greenwood told the Des Moines Register's Jason Noble the following week. "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 [April 28]." Miller announced his findings on the next business day, May 1.
Nothing in the gubernatorial succession public records indicates that Miller ever considered refusing to issue a formal opinion, once Johnson had asked for one. The hundreds of pages of internal correspondence also contain no hint that anyone advised Miller to decline the senator's request because of possible future litigation.
When I asked Greenwood last year about his exchange with Petroski, he confirmed that no one on Miller's staff advocated against providing a formal opinion on whether Reynolds would become the governor (as opposed to "acting governor") and whether the Iowa Constitution allowed her to name a new lieutenant governor.
I would never ask another reporter to reveal a confidential source, so I haven't discussed this incident with Petroski. But you don't need to be an ace detective to surmise that this "really good source" was probably connected to Branstad and Reynolds. The tip obviously didn't come from the Attorney General's office. Nor did it come from Senator Johnson; he had just told a different journalist on April 25 he'd been expecting Miller to release his opinion the previous week. Who but a member of the governor's staff or "kitchen cabinet" could have convinced a political reporter that s/he had credible information about the attorney general's plans?
The current and future governor's circle were also the only people with a vested interest in getting the Des Moines Register to report this inaccurate rumor. Branstad's chief of staff Michael Bousselot and legal counsel Larry Johnson learned of Miller's conclusions from Solicitor General Jeffrey Thompson in late March. They couldn't force the attorney general to declare Reynolds had the constitutional authority to appoint a new lieutenant governor. The next best thing would be to persuade him not to issue an opinion, so the administration could do as it pleased with no legal obstacles.
Documents show members of the governor's staff met with Thompson and some colleagues on April 26. That was presumably when they asked Miller not to go public until he had talked face to face with Branstad and Reynolds.
No one in a position to know ever answered my repeated questions about the substance of that April 28 meeting. But it seems likely the governor and future governor urged the attorney general not to take a stand on the constitutional controversy. Speaking to WHO-TV's Dave Price hours after Miller announced his opinion on May 1, Reynolds pushed the same talking point the tipster had fed to the Register.
If I’m sued, this is another unfortunate–I really don’t believe that he needed to weigh in on this. It says that the, you know, his number one constitutional duty is to defend the state and state officials in court if we’re so sued. And by him issuing this opinion, he takes himself out of that. So I wouldn’t, he wouldn’t be able to represent me if I was in fact sued if I move forward [and appoint a lieutenant governor].
And, you know, it was Senator Johnson that asked for the opinion, and this doesn’t impact the duties of him being senator, and so therefore he [Miller] had no obligation to issue an opinion.
And in addition to that, there is precedents before, if there is impending litigation that possibly could happen, like in Price Labs [the University of Northern Iowa's former teaching school], he was able to decline to issue an opinion [on its planned closure in 2012] because he thought he would possibly have to represent--bottom line is, I think the law is clear. I think Iowans see this as politics. The timing is interesting. Why five months later? Why right now? I don't believe anything has changed [...].
Watching the unedited footage from that WHO-TV interview, one marvels at how easily and comfortably Reynolds lied, again and again. "We'd settled this in December"; "I don't think anything has changed from that opinion that he gave in December until now"; "Why five months later? Why right now? I don't believe anything has changed." If you didn't know better, you'd think she really had been blindsided that afternoon.
Contrary to the impression Reynolds and other Republicans worked hard to create, Miller hadn't suddenly, unexpectedly revised his interpretation of the constitution. Weeks earlier, solicitor general Thompson had summarized the legal and historical case and had sent the governor's legal counsel a batch of state court rulings and attorney general opinions supporting the new determination. Not only had Reynolds had plenty of advance warning, she heard first-hand from Miller on April 28 about why he changed his mind.
Another clue suggests a potential lawsuit was on the minds of the governor's staff around this time. In early April 2017, the administration asked Republican lawmakers for a $150,000 fiscal year 2018 appropriation to cover gubernatorial transition expenses. That line item hadn't been in draft 2018 budgets Branstad submitted to the legislature in January and March, for good reason: the transition was going to happen during fiscal year 2017. Indeed, none of the $150,000 appropriation was spent, because all related costs were incurred before the end of June 2017.
Why ask for this strange, unnecessary appropriation? As Bleeding Heartland discussed here, the budget line item could have been useful in litigation over Reynolds' power to appoint a lieutenant governor.
Miller's opinion might bolster a plaintiff's case in such a lawsuit. It would be better for his team's exhaustive research never to see the light of day.
Near the top of this post, I called Petroski's bad tip "misinformation" (that is, false information that may or may not be intended to deceive) rather than "disinformation" (inaccuracies spread deliberately, with a political goal). In my experience, most sources mean well and would not try to trick me into reporting something they know to be untrue. If a story doesn't check out, maybe some context got lost in the rumor mill, or the source didn't understand some aspect of an issue or political process.
For what it's worth, I suspect the rumor floated to the Register was disinformation, designed to box Miller in. Getting Iowa's leading newspaper to report the attorney general would not issue an opinion could assist the administration's persuasion campaign. It would also expose the newspaper's readers--including virtually every other journalist in Iowa--to the narrative that Miller should not answer Senator Johnson's questions. Best-case scenario, Miller might back off. If he didn't, his opinion could be spun as a double flip-flop, about both Reynolds' authority and the wisdom of staying out of the fray.
I welcome insight from reporters on how they would approach someone who tried to hook them on a totally wrong take about a major story. I'd be inclined never to trust that "really good source" again.