Attorney General's misconduct hearing wraps up

Attorney General Austin Knudsen’s disciplinary hearing for charges of professional misconduct concluded Thursday. A special counsel says Knudsen undermined the integrity of the judiciary through defiant language and rejection of a court order. Knudsen says he was representing the Legislature in a separation-of-powers case.

Knudsen was charged with 41 counts of professional misconduct for the way his office defended the state Legislature in a suit in 2021. The Office of Disciplinary Counsel’s charges against the attorney general revolve around statements his office made about the Montana Supreme Court and his defiance of a court order.

Special Counsel Tim Strauch laid out the charges.

“We must meet the AG’s deplorable and unethical conduct with serious and compelling discipline. No one can be left with even a hint that anything close to this disrespectful and unethical conduct is permissible or tolerable. The rule of law depends on it,” Strauch said.

Knudsen has said it was the judiciary that overstepped its authority.

In 2021, Republican leaders subpoenaed the state Department of Administration to produce judicial branch emails. Lawmakers learned that judges had been discussing pending legislation concerning the judiciary. Legislators argued that was a misuse of state resources and revealed bias among judges.

The Department of Administration immediately complied and released about 5,000 emails from the judicial branch.

Court Administrator Beth McLaughlin said during the disciplinary hearing that the disclosure made her “physically ill.”

“It meant that documents that I had an obligation to protect were not protected and there was outstanding liability to the state,” said McLaughlin.

She says her email inbox contained statutorily confidential information about child abuse cases, disciplinary proceedings and private health information.

She filed an emergency order to stop the gathering of emails and the Montana Supreme Court granted the request.

But Knudsen’s office said the Legislature would defy that order, and the judiciary had overstepped its authority.

Special Counsel Strauch says Knudsen failed to push back through official channels, and disrespected the court in doing so.

Republican lawmakers in defense of Knudsen say they tried to get the emails through other means first. They argue that the emails were public records the judiciary was required to hand over.

Republican Sen. Greg Hertz explained the Legislature’s stance Thursday.

“We saw some of those emails and it was quite disturbing that we saw the judiciary weighing in on pending legislation that they could possibly rule on if any of this legislation went to the court,” said Hertz.

Defense attorney Shane Coleman argued lawmakers had pushed Knudsen to defy the court on their behalf.

“Their state of mind, their belief as to what the emails reflected is absolutely relevant to what Mr. Knudsen put in his brief and certainly as to his subjective intent,” Coleman said.

The decision about whether or not Knudsen is guilty of misconduct comes down to the Commission on Practice, which oversees lawyers’ professional conduct.

The commission’s chair ruled during the hearing that lawmakers’ concerns about the judiciary were irrelevant to the issue of evaluating Knudsen’s actions.

The five-member commission will deliberate whether Knudsen is guilty of misconduct, and whether it should take disciplinary action against him. That could be a minor reprimand or, in the most extreme case, disbarment.

Knudsen is running for re-election to be the state’s top attorney.