An ongoing criminal investigation of how Secretary of State Alison Lundergan Grimes and her staffers used voter data was temporarily stymied after Kentucky State Police seized a computer from Grimes’ office without first obtaining a warrant.
Franklin Circuit Court Judge Phillip Shepherd filed an order Monday restraining Mark Metcalf, the special prosecutor appointed to the case in 2018 by Attorney General Andy Beshear, from taking any action that could affect the operations of the secretary of state’s office until he rules on a motion by Grimes seeking an injunction against Metcalf.
Shepherd’s restraining order stopped Metcalf from “seizing any computers, equipment, books, papers or other property of the Office of the Secretary of State without a duly authorized warrant, and from interrogating any employees or contractors of the Secretary of State without the presence of counsel for the Office of Secretary of State.”
Police have returned the computer they seized, but Grimes has asked Shepherd to require Metcalf to disclose what electronic information he obtained from the computer and to prevent investigators from speaking to Grimes’ staff without the secretary of state’s attorney present.
Metcalf called Shepherd’s order an “extraordinary case of judicial overreach” and asked the Kentucky Court of Appeals Tuesday to dissolve the order and cancel a hearing Shepherd scheduled in the case. In his appeal, Metcalf said the order effectively prevents “any criminal investigatory actions of the special prosecutor and Kentucky State Police” and added that “each second the restraining order is in place compromises the integrity of the investigation.”
Late Wednesday, the appeals court granted his request for immediate relief, temporarily lifting the restraining order and canceling the Thursday morning hearing, which Metcalf said would have harmed his investigation into Grimes. A three-judge panel of appeals court judges will rule on Metcalf’s request to prevent Shepherd from issuing any order affecting the special prosecutor’s work sometime after October 25.
The legal quagmire ties together two legal cases, both involving Grimes.
The computer in her office was seized as part of Metcalf’s investigation into allegations made by Jared Dearing, the executive director of the State Board of Elections, including that Grimes’ office illegally searched people in the state’s voter registration database and that her office illegally obtained copies of the voter registration database.
Meanwhile, Grimes has filed a lawsuit being heard by Shepherd that challenges the legality of a new law that stripped Grimes of much of her power over the State Board of Elections and made it a misdemeanor for her staff to “improperly” use the voter registration database.
Grimes filed her motion as part of the civil lawsuit she’s pursuing to overturn the new law. Her attorneys have argued the law has had a chilling effect on her staff because of the ongoing investigation, therefore tying the two together.
In his appeal, Metcalf argues the two legal issues should not be tied together because doing so might give Grimes’ attorneys access to data police pulled from the computer. He accused Grimes of attempting to disrupt a criminal investigation into her office.
“It is unprecedented that the subject of an ongoing investigation, through a targeted and unrelated civil proceeding, could gain knowledge of the special prosecutor’s or Kentucky State Police’s strategy, progress, witnesses and potential evidence against her,” Metcalf wrote to the appeals court.
Metcalf also argued that any dispute about whether a search warrant was needed to take the computer can be resolved in any future criminal case the prosecutor might attempt to bring against Grimes. He obtained a search warrant for the computer three days after Kentucky State Police seized it. Any information a judge decides was obtained illegally could not be used as evidence in trial, he said.
Grimes’ attorneys, though, argued that Shepherd has the authority to stop an illegal seizure of property and require the return of any data taken from the computer.
“Metcalf’s position is that the secretary of state, an elected constitutional officer of the Commonwealth of Kentucky, is without any legal recourse to prevent warrantless seizures of her office’s property and violations of Kentucky’s ethical rules up until the time a criminal proceeding is initiated, if ever,” Grimes attorneys wrote to the court of appeals. “In other words, Metcalf’s position is that he can infinitely commit unconstitutional and unethical acts with impunity unless and until he brings criminal charges.”
Metcalf stressed that the computer has already been returned and that Grimes is requesting information taken from the computer, which he said could show the “prosecutor’s ‘mental impressions, conclusions, opinions or legal theories’ regarding potential criminal evidence” against her.
He also said having the secretary of state’s attorney present when employees are interviewed could potentially have a chilling effect on those being interviewed.
“The special prosecutor and Kentucky State Police are investigating serious allegations against an elected state officer and the investigation, whatever the outcome, must be protected,” Metcalf wrote.