Herbert says no agreement yet on release of election legal opinion; Lawmakers say he wants a promise they won’t sue him

Gov. Gary Herbert pushed back on Thursday against a UtahPolicy.com report that his office had agreed with GOP legislative leaders to release a legal opinion on the 3rd Congressional District special election.

“That article is inaccurate,” said Gov. Herbert during his monthly KUED press conference. “We are in negotiations (about the legal opinion) and are hoping to resolve the issue.”

However, legislative sources tell UtahPolicy.com that once John Curtis, the winner of Tuesday’s special election, is sworn into Congress, Herbert will allow Attorney General Sean Reyes to release the opinion. The only thing holding up the process is Herbert wants lawmakers to give him a “hold harmless” letter, essentially a promise they will not sue him once the contents of the legal opinion are known.

Legislative leaders requested the opinion from Attorney General Reyes shortly after Gov. Herbert set the process for the election to replace Rep. Jason Chaffetz who resigned abruptly from Congress earlier this year.

Herbert blocked Reyes’s office from giving the legal opinion to lawmakers, asserting that Reyes was his lawyer, and thus attorney-client privilege would keep Reyes from working for another client.

“The Legislature wanted the opinion, but my concern is not what that says. The Attorney General is required by the Utah Constitution to be my attorney,” he said. “You cannot waive that conflict if you are an attorney. Even the Utah Bar says you’re on thin ice here,” he said. 

Herbert’s office reiterated to UtahPolicy.com on Thursday afternoon that no agreement for the release of the draft memo had yet been reached, but they are currently negotiating with lawmakers.

“There is a legitimate difference of opinion here,” said Herbert on Thursday morning. “We can try to resolve this in a partnership. Maybe we go to court, or we might work with the Utah State Bar. Both sides want to have the answer.”

Lawmakers are readying legislation to make sure the Attorney General would also serve as the top legal advisor to the legislature as well. That may well take a constitutional amendment.

“We don’t want to give up the right of the Attorney General to represent us,” said Herbert. That would require a change in the constitution. If the legislature passed any legislation that was in violation of the constitution, then I’d be compelled to veto it.”