Governor Newsom does not want the Proposition 50 mapmaker, data guru Paul Mitchell, to testify next week in the hearing on whether racial data was used, illegally, to create the 52 new Congressional Districts that voters approved in last month’s special election. In a filing mandated by the Court before 5 p.m. last night, Newsom says Mitchell, who refused to testify 100 times a few days ago at his deposition on the racial data issue, should not be considered an agent of Newsom (the main proponent of Prop. 50), or the Legislature, because he did not “work for the legislature”, and is not a formal “party” to the lawsuit. Let that sink in. Newsom says Mitchell did not work for the Legislature.
While the U.S. Department of Justice is questioning the claim of “legislative privilege” in the case and is now asking the Court to compel Mitchell’s further testimony on racial bias in the mapmaking, Newsom says he has “no power” to produce Mitchell as a witness, has none of Mitchell’s documents and evidence in his possession, and cannot waive any claim of privilege to not speak that Mitchell asserts on behalf of the Legislature, because Mitchell is on his own, with his own lawyer, and is a “non-party witness.”
Other oppositions filed late yesterday against Mitchell giving evidence on racial bias in the mapmaking were filed by the national Democratic Congressional Campaign Committee and LULAC. They repeat reasons to the Court why Mitchell should be allowed to gag himself and not disclose the evidence of racial number crunching behind Proposition 50, which remains a big secret, but they also expand arguments on “Mitchell really didn’t work for the Legislature” and is therefore a non-party witness who can’t be forced to testify at this stage of the litigation without being subject to, for example, formal subpoena again. This argument may have some “blue smoke” technical merit but only that, as the DOJ did in fact subpoena Mitchell a couple times for the deposition in which he refused to testify, a fact that the Newsom Defendants seem to ignore, and which will not be lost on the Court, which appears to actually want to hear what Mitchell has to say.
The Newsom Defendants have some rather illogical reasoning in their presentations to the Court. They all say Mitchell is entitled to the legislative privilege to refuse to testify on his work on Prop. 50, “on behalf of the Legislature.” But they also repeat “Mitchell didn’t work for the Legislature,” had no contract with it, and was not paid by it. Mitchell has so testified in support of these allegations as well. So the Court is left with the pleading by the Newsom Defendants that the Legislature didn’t hire him, he didn’t work for them, but he should be entitled a privilege not to testify that is owned by the Legislature, not by him personally. It really does not make much sense to some legal observers, and the Court may also see it as rather shaky reasoning. After all, it is admitted that Mitchell’s work “went to the Legislature” and they voted on it. This can mean that Mitchell was indeed an “agent” of the Legislature for purposes of compelling testimony, but not the “alter ego” of a Legislator for purposes of avoiding testimony. That is the Department of Justice’s argument.
Mitchell did testify on December 10 in his deposition that he was “not paid by anybody in the legislature to draw the map” used to create Prop. 50. That admission alone would seemingly cut against his claim of “legislative privilege.” Mitchell did testify his firm was paid $108,000 by the Democratic Congressional Campaign Committee at his deposition, a fact that is supported by the DCCC’s own answers to interrogatories in the case. Since the DCCC is an official party to the case as a “Defendant-Intervenor,” the Three-Judge panel has a path to Compel Mitchell’s testimony as an agent of a party, free from any claim of privilege. Will they take it?
We will know very soon when the Court rules, as the Court told the parties to be prepared, pending a ruling, to begin a new deposition on race with Mitchell today or tomorrow. Stay tuned!
Mr. Lacy, thank you for this update. This issue is huge and affects me. It appears to me that Mr. Mitchell is playing both sides of the fence. I would want to see proof of who hired and paid him to do Newsom's bidding. This man's actions are "hinky" which makes me question his integrity. Newsom has no integrity.