The latest orders, first reported by the Honolulu Star-Advertiser, aim to gather background information, as HART understands it. The U.S. Department of Justice doesn’t consider those employees to be targets of the investigation, HART officials believe.
As to what information the feds are seeking from these staff members? “We have no idea,” HART Executive Director Andrew Robbins said Thursday.
He added, however, that he may have seen one of the orders. Still, he said, he’s not sure what they’re looking for.
The subpoenas went directly to the employees; they weren’t served through HART. The agency doesn’t have copies. Robbins wouldn’t specify exactly how many people were served.
“We want to respect the privacy of our employees, so we don’t want to give any information … to pin down who they are,” he said. When pressed that a simple head count would not help determine the identities, Robbins remained firm.
HART and its board first received a trio of grand jury subpoenas in February, following years of cost and schedule problems plaguing the project and calls from many in the community for outside investigation.
Corporation Counsel has recommended hiring an outside attorney with special expertise to help navigate HART’s federal subpoenas.
To comply, the agency provided four terabytes of documents to the feds, Robbins said.
The third subpoena — aimed directly at HART’s board — has proven much more complicated. It demands a full and unredacted record of the board’s closed-door meetings, and there’s no exception listed for discussions that might fall under attorney-client privilege.
“We’re going to comply as much as we can,” HART board chairman Damien Kim said in February when the subpoena was served. The members planned to consult with the city’s office of Corporation Counsel.
‘I’m Not Going To Answer That’
This week, that office declined to comment on whether it’s possible for the HART board to comply with federal authorities’ demands for the meeting minutes.
What’s known for sure is that Corporation Counsel has recommended hiring an outside attorney with special expertise to help navigate HART’s federal subpoenas.
“I’m not going to answer that in open session,” a Corporation Counsel representative told her.
At the same meeting, Councilwoman Ann Kobayashi asked Robbins, who isn’t privy to board discussions, if they’re reluctant to hand over certain documents to federal authorities.
“I should be careful not to testify on what I believe is on the minds of the board,” Robbins responded.
As of Thursday, Corporation Counsel still hadn’t given final direction on what to do, according to Kim. The full board has only managed to discuss the subpoenas once since those orders were served — in closed session.
“Right now we don’t have a final answer,” said Kim, who’s been trying to leave the volunteer board for the past two months but there’s no replacement yet to fill his seat. “Waiting — wait and see.”
Courts typically give a lot of latitude to carefully worded grand jury subpoenas — and the recipient of the subpoena is expected to comply fully, Stuart Gasner, a former assistant U.S. Attorney for Hawaii, said in an email.
“Of course, subpoena recipients can assert attorney-client privilege, and portions of the minutes might be redacted on that basis,” Gasner added. “Whether those redactions hold up depends on the extent to which the minutes reflect actual legal advice being sought or given. Just having a lawyer sitting in the room with the Board doesn’t make it privileged. The redactions have to be very specific.”
Tsuneyoshi and Kobayashi wondered why the board simply couldn’t hand over all documents and save taxpayers the $50,000 on extra legal advice.
For Councilman Tommy Waters, a bigger concern than who foots the bill is that HART needs a criminal defense attorney, he said at that meeting.
HART officials, meanwhile, say they’ve been advised not to discuss the investigation in order to avoid any perception that they’re interfering with the investigation.
“We don’t have anything more to say beyond that statement,” agency spokesman Bill Brennan said Thursday.
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