In the past we’ve compared Piyush Jindal to Richard Nixon, primarily in the context of Jindal’s desire for absolute power and his intolerance for dissent. For the most part those comparisons were tongue-in-cheek, intended to show the governor’s absurd propensity toward micromanagement.
The comparisons were metaphors as much as anything else and not to be taken literally.
That was then.
Now, less than a year into his second term, Jindal, much like Nixon, is becoming more and more obsessed with secrecy.
Nixon’s attempt to conceal public documents behind a cloak of “executive privilege” has been supplanted by Jindal’s even vaguer term—something called the “deliberative process.”
Jindal demands complete and total loyalty from his minions with no room for dissent.
He is certainly entitled to expect—and demand—loyalty from his appointees. That is his right.
But his problems run much deeper; Jindal’s administration, much like that of Nixon’s is being permeated with the destructive mentality of paranoia.
That is, without question, the most serious and debilitating characteristic that can plague any elected leader and whether one likes Jindal or despises him, it is both sad and disturbing to watch the slow unraveling of what could have been. The realization that his mistrust of anyone who might pose a question about any of his decisions is slowly starting to paralyze the state he was elected to serve. The story of his administration will read not as history as it should, but more like a Shakespearian tragedy.
Now we have proof that he, like Nixon, is not beyond concocting outright lies to conceal his real intent and to advance his agenda. We have known this all along but now we have written documentation and, strangely enough, LouisianaVoice was the catalyst in this new, unfolding drama.
But this isn’t about LouisianaVoice.
This is a much larger and more important issue.
It’s about trust and credibility.
Jindal has steadfastly maintained that he has taken a “hands-off” approach to the day to day operations at LSU, even to the point of the governor’s executive counsel Elizabeth “I didn’t know there was a State Constitution” Murrill’s outright denial on Oct. 9 that she instructed LSU to hide behind the deliberative process privilege.
But nearly two months earlier, on Aug. 16, LSU attorney Shelby McKenzie wrote LSU Interim President William Jenkins that Murrill had specifically asked to review documents requested by LouisianaVoice.
The documents were also shared with Lee Kantrow, a private Baton Rouge attorney who serves as legal counsel to the University Medical Center board.
It seems they were shared with virtually everyone but the media which had requested the information in the first place.
Murrill, along with the rest of the governor’s office, of course, have employed the bunker mentality as they hunker down and now refuse to comment publicly on their being caught in the big lie.
Deliberative process is a legal term that never existed before Jindal took office in 2008.
It powers the process of deciding what qualifies as public record and what does not in that it protects deliberations in the governor’s office as well as in recommendations to the governor by agency officials.
A 45-page report by the Louisiana Law Review at the LSU Law School says of the deliberative process:
• The statutory deliberative process privilege allows the governor to fight the disclosure of any government record (emphasis ours) used in his decision-making process, even if that record is located outside the governor’s office. Some scholars criticize the very concept of the deliberative process privilege as eroding the “power and effectiveness of the citizens who we regard as sovereigns.” By adopting the phrase “deliberative process,” the legislature has attempted to implicate a body of law interpreting a particular exemption under the federal Freedom of Information Act (FOIA). But it is not quite the clean fit the legislature might have envisioned. Left unsettled is whether Louisiana courts will or should embrace all the various intricacies in FOIA jurisprudence or craft solutions more faithful to Louisiana’s historically liberal public records doctrine.
• Under Act 495, the governor will also be able to deny access to “intra-office communications” between himself and his staff. Courts will have to decide just what types of communications qualify for this exemption, as a broad interpretation will result in this “new” addition to the statute amounting to little more than a smaller version of the governor’s prior custody-based exemption.
• Finally, Act 495 raises an interesting dilemma: are governors now required to archive records, rather than shred them upon leaving office? One reading of the new law seems to allow governors to shield forever the documents that they independently deem as revealing of their deliberative process, denying potentially valuable and enlightening information to historians and future generations.” (emphasis ours)
Apparently, all an agency head has to do to protect public records from scrutiny is to couch them in the form of recommendations to the governor.
To be fair to McKenzie, he apparently recognized the legal problems of hiding behind the deliberative process shield and attempted to straddle the issue with his letter. “The express provisions of the statute are not broad enough to apply to the current public records request,” he said. “An argument could be raised that the privilege is grounded in constitutional principles (oops! Just lost Murrill) “of separation of powers and personal freedom of expression,” adding that a resolution of the issue “is a genuine legal dispute” that only a court could resolve.
He said that because the deliberative process is being invoked by several state agencies, “it is unlikely that LSU will be the target of any legal attack on the privilege.”
So, while the prevailing philosophy seems to be to employ the deliberative process so liberally and so often that those seeking information to which the public is entitled become so confused and exhausted in their efforts that they will give up.
Don’t count on it.