A federal judge on Thursday blocked the American Civil Liberties Union from distributing video of Kris Kobach being deposed, though the video was requested by The Topeka Capital-Journal and other news outlets.
U.S. District Judge Julie Robinson rejected arguments for releasing the video as a matter of public interest, saying the public's interest was satisfied by playing the video at trial and by unsealing the transcript.
The 40-minute video shows the ACLU questioning Kobach about his meeting with President-elect Donald Trump in November 2016. The secretary of state, who is now the Republican nominee for governor, was in the unusual position of being a witness, defendant and attorney making arguments in a case that challenged the state's proof of citizenship requirement for new voters.
Kobach was combative with ACLU as he discussed his interest in overhauling the National Voting Rights Act. He said he drafted changes in preparation for losing the case, which was argued at trial in March. Robinson ultimately determined he failed to prove claims of widespread voter fraud. The case is being appealed.
The deposition was recorded in August 2017, when Robinson already had blocked enforcement of the law because of the likelihood the ACLU would prevail.
"I was surprised that you persuaded Judge Robinson to grant the preliminary injunction," Kobach said in the deposition. "I thought your argument was so incredible that it had no merit at all."
Kobach said the purpose of meeting with Trump was to discuss the Department of Homeland Security and the possibility of making Kobach the department's secretary.
Sue Becker, an attorney working for Kobach in the secretary of state's office, pleaded with the court to block the release of the video, accusing the ACLU of being politically motivated. If released, she complained, Kobach's rivals would use it in political advertising ahead of the Nov. 6 election.
The ACLU argued it had a right to release the video in response to media requests.
Robinson pointed to federal court rules against broadcasting live witness testimony and noted that Kobach's objections to being deposed were overruled in part because the deposition would be marked confidential.
"The press was given ample access to the trial proceedings in this case, including the video of secretary Kobach’s deposition," Robinson said. "The Court went to great lengths to ensure that the credentialed press had access to the courtroom, and created an overflow room with a closed-caption feed of the courtroom in the event the courtroom was full. Additionally, the court accommodated the press in this case beyond its normal practices by allowing members to bring electronic devices into the overflow room, and by allowing them to file stories from within the courthouse. ...
"The transcript of the video was unsealed upon designation and remains available to the public and press. Under these circumstances, the Court finds that the public’s right to access the video was adequately protected."//