Montana Attorney General Austin Knudsen listens to a witness at his Commission on Practice disciplinary hearing on Oct. 9, 2024. (Photo by Blair Miller, Daily Montanan)
Montana Attorney General Austin Knudsen took the stand Wednesday to explain to the Commission on Practice that the inflammatory language he used in documents during a 2021 court spat between the Legislature and Supreme Court was only used because that was the position his client, the Legislature, was taking during the time that he described as a “constitutional emergency.”
The Commission on Practice is the five-member panel charged with determining whether the state’s top attorney will face any disciplinary action for his role in the controversy, part of 41 counts of professional misconduct Knudsen faces as a Montana attorney. Those counts stem from a grievance, and then complaint, filed in September 2023.
During cross-examination by Office of Disciplinary Counsel special counsel Tim Strauch, Knudsen denied that several criticisms he and his office made in filings directed toward either the Supreme Court, the judiciary, the decisions they made, or court administrator Beth McLaughlin were disrespectful to the Supreme Court, intemperate, contemptuous, insulting, undignified of the legal profession and as the chief legal officer of Montana. He also said his and his office’s statements did uphold the dignity of the Montana Supreme Court.
While Knudsen said he “fully supported” the language he and his deputies used in filings in 2021, he also conceded that if the fight over judicial records and subpoenas were to happen today like it did three years ago, he would have done things differently and perhaps not included such fiery language in his office’s briefs.
Attorney General Austin Knudsen on the stand at his Commission on Practice disciplinary hearing on Oct. 9, 2024. (Photo by Blair Miller, Daily Montanan)
“If I’m being really honest, in hindsight, I think a lot of things could have been done different here and probably should have been done different here,” he said. “If I had this to do over, I probably would not have allowed language like this, so sharp, to be used. But we and our client truly felt that we were in an absolutely novel situation of constitutional emergency, and this is the language that went out.”
Wednesday marked the first of what is likely to be a two-day disciplinary hearing in front of a five-person Commission on Practice panel.
The attorney general is being represented by Montana Solicitor General Christian Corrigan and several private attorneys.
During the morning, both sides questioned attorney Randy Cox, who represented McLaughlin in litigation surrounding the Legislature’s attempts to get email records from her and the Supreme Court through subpoenas to the Department of Administration regarding a bill that would do away with the Judicial Nominating Commission in 2021.
Cox gave his account of what happened after his client, McLaughlin, learned that lawmakers were subpoenaing the judicial branch’s emails during a weekend in 2021. Cox told the commission that she was worried that some of those emails contained confidential information, protected by law, for example youth who were involved in the court system.
But Knudsen’s testimony was arguably the most important of the entire hearing, as he explained why he did not believe he had violated the oath he took when he was sworn in as a member of the Montana State Bar with comments about the Supreme Court’s rulings and other actions the judiciary took during those contentious few months.
Attorney Randy Cox testifies during Attorney General Austin Knudsen’s disciplinary hearing in front of the Commission on Practice on Oct. 9, 2024. (Photo by Blair Miller, Daily Montanan)
Knudsen’s arguments boiled down primarily to what he has said from the start about the complaint: That he and his office were simply zealously defending his client, the Legislature, and seeking to get Supreme Court justices off two cases surrounding the subpoena and records fight because the Legislature believed they were rightfully owed documents. He said the Supreme Court was skirting responsibilities it owed to a coequal branch of government.
“As I said, I don’t get much involved in the day-to-day litigation in the office anymore since I’ve taken the role of Attorney General. In fact, I’m a glorified administrator,” Knudsen said.
He said the Department of Justice was in a “difficult situation” when deciding whether to represent the Legislature in its fight with the courts, but he believed his duties as attorney general left him no other option but to get involved and represent a branch of state government.
Knudsen said most of the contentious statements were written by then-Chief Deputy Attorney General Derek Oestreicher or the late then-Lieutenant Attorney General Kris Hansen, who died in July 2022.
In some of those filings and letters, the Attorney General’s Office, including Knudsen, said it did not recognize and would not abide by an order from the Supreme Court, that the Legislature would not do so with future rulings, that some rulings were “erroneous,” and that the court, as a hammer, saw everything “as a nail.”
Strauch said those documents showed Knudsen was being disrespectful to the court, failing to recognize legitimate legal rulings, and failing to uphold the integrity of the court. But Knudsen denied that was true in front of the Commission on Wednesday, saying he believed he had no valid obligation to comply with a court order because of his client’s objections.
“This letter was meant to openly assert our client’s position that there was no valid obligation to comply with that court order,” he said with respect to a letter sent to the court. “That was the position of our client, my client, a co-equal branch of government with the judiciary.”
Strauch asked if Knudsen could cite a rule of professional conduct that excuses an attorney’s behavior because they are simply representing their client. Knudsen said he could not off the top of his head.
Knudsen said that the Montana court system at the time had not tested law surrounding subpoena power in relation to another branch of government and his office had “been instructed to press that position.”
“I felt my office was ethically bound to press our client’s position firmly and zealously until we’d exhausted all remedies,” Knudsen said.
But Strauch pressed him to concede that his office was still in possession of judiciary emails for months as it attempted to get the U.S. Supreme Court to hear the case despite a Montana Supreme Court order saying all records needed to be turned back over to the court.
He also asked why Knudsen did not file a complaint against any of the justices with the Judicial Standards Commission and instead chose the course of criticizing the judiciary and flouting court orders, as the ODC alleges. Knudsen said he did not knowingly make false statements in his filings or any in “reckless regard for the truth” about any justices.
Office of Disciplinary Counsel special counsel Tim Strauch questions a witness before the Commission on Practice on Oct. 9, 2024. (Photo by Blair Miller, Daily Montanan)
He also said he believed filings with the U.S Supreme Court in which his office cited “judicial self-dealing” and the Montana Supreme Court’s alleged “misbehavior” and ignoring “manifest conflicts” were not contemptuous or insulting to the Montana judiciary.
When questioned by his own attorneys, Knudsen said he worried that turning the emails back to the judiciary before his office had exhausted its appeals in the case could have led to more of them going missing. Some of McLaughlin’s emails had been deleted when records were initially turned over to the Legislature, the panel was told.
“There (were) questions about prejudice, there was questions about spoliation. We had already seen one batch of emails go missing from the Supreme Court administrator’s office,” he said. “That absolutely was a concern of our client, and frankly, a concern of ours.”
He said that also justices should have recused themselves in the cases, which is why he used such “strong language” in his and his office’s filings and letters. But Corrigan also noted that Justice Jim Rice had compared Knudsen to Andrew Jackson’s removal of the Cherokee from their ancestral lands through the Indian Removal Act.
Corrigan asked how an attorney could ask a judge to recuse themselves without pointing out their supposed conflicts of interests, to which Knudsen responded, “I don’t know how to.”
Strauch noted that every complaint levied against Knudsen was with respect to his conduct and not to his filing motions on behalf of his clients, which Knudsen acknowledged was accurate.
Montana Attorney General Austin Knudsen listens during a hearing on ethics violations in front of the Commission on Practice on Oct. 9, 2024. (Photo by Blair Miller, Daily Motnanan)
Knudsen again said he believed it was “necessary” to use the language used in the filings but reiterated he wished “cooler heads prevailed” in hindsight.
“No, I’m not walking back on that,” Knudsen said.
The commission heard from Supreme Court Clerk Bowen Greenwood, also a Republican, toward the end of the day. He is one of Knudsen’s team’s witnesses and explained how Rice, the chief justice for one of the cases, had ordered him to work on a Sunday so Cox could file a request for a temporary restraining order by McLaughlin to stop production of the emails. Rice would grant the order later that day.
Greenwood said during his time in office since 2019, he has never seen any court filing be processed, much less an order be handed down, on a Sunday. Strauch contended that Greenwood knew that releasing confidential personnel records and human resource records to the public was a violation of the law, hinting that was why McLaughlin was seeking the restraining order in the first place.
The commission will reconvene at 9 a.m. Thursday morning to hear from McLaughlin, who will testify and be cross-examined remotely, then hear from Knudsen’s witnesses, former House Speaker Wylie Galt and Sen. Greg Hertz of Polson – both of whom were involved in the 2021 fight between the Legislature and the courts.