Phil Bryant asks court to throw out subpoena for Brett Favre pharma texts

by Anna Wolfe, Mississippi Today
November 14, 2022

Former Gov. Phil Bryant, whose administration saw the misspending of tens of millions of federal welfare funds, is again asking a judge to throw out a subpoena against him in the state’s ongoing civil case related to the scandal.

A defendant in the civil case filed a subpoena in early October for a large swath of records from Bryant, including his texts with former NFL quarterback Brett Favre about a concussion drug company that received $2 million in stolen welfare funds.

In a filing Friday, Bryant argued that his personal text messages are protected under executive privilege, and that the subpoena should either be thrown out or that any records he provides be placed under a protective order. 

He made a nearly identical response in September to a separate subpoena for his communication related to the new volleyball stadium at his alma mater, University of Southern Mississippi, which was built using $5 million in welfare funds.

The latest subpoena comes from Austin Smith, the nephew of convicted former welfare director John Davis. Smith is accused of taking nearly $430,000 in welfare funds under contracts he allegedly didn’t fulfill. He has argued in response to the complaint against him that if he's liable for welfare misspending, Bryant is too, and that the former governor should be added as a defendant. Bryant has rejected this notion.

“Smith should not be allowed to use this proceeding as a political tool to harm the reputation and business of a former politician with whom he disagrees on matters of policy,” Bryant’s motion reads. “A protective order would allow Smith to use the subject documents for legitimate purposes in the context of this suit, and would disallow him from using them to grandstand in the press with baseless accusations and politically-motivated innuendo.”

Hinds County Circuit Court Judge Faye Peterson has yet to rule on these and several other motions in the sprawling civil case, and defendants have asked for a hearing in January to resolve them. 

The Mississippi Department of Human Services civil case targets 38 individuals or companies – including Favre, the concussion drug company Prevacus and Prevacus founder Jake Vanlandingham – in an attempt to claw back roughly $24 million in misspent welfare funds. The purchases targeted in the suit make up a fraction of the nearly $100 million in improper spending that State Auditor Shad White uncovered in 2020.

Smith also subpoenaed Bryant for any of his communication related to several other welfare-related projects or alleged events first reported by Mississippi Today, including a fitness program by trainer Paul Lacoste, a virtual reality academy by Lobaki Inc., advertising campaigns with conservative talk radio station SuperTalk and “Families First,” treatment for Bryant’s nephew that the governor and his welfare officials facilitated, and the firing of Debbie Hood, wife of former Democratic candidate for governor Jim Hood.

Out of 26 items requested in the subpoena, Bryant said he did not have responsive records for 11 of them.

Bryant denied having any communication, as the subpoena requests, between himself and State Auditor Shad White regarding "whether you are liable for misappropriation by MDHS."

He said he does not possess any communication with the former WWE wrestler Ted DiBiase or his two sons, who received over $5 million in welfare funds, about payment to the wrestlers. 

Bryant also denied having any communication regarding:

• Gov. Tate Reeves’ efforts to obtain funding for Paul Lacoste, whose foundation received $1.3 million in welfare funds
• The tech company Lobaki, which received $795,000 in welfare funds
• The termination of Debbie Hood as an employee of Family Resource Center

However, Bryant said he does possess records and communication surrounding Prevacus – much of which Mississippi Today published in its series “The Backchannel” – including documents “relating in any way to any ownership interest in Prevacus that You (Bryant) had, have, or that was proposed or suggested to You by any person.”

He also confirmed he has communication about:

• Setting up a meeting with Paul Lacoste to talk about his foundation's contract
• Paying for advertising on conservative talk radio station SuperTalk, which received $600,000 in welfare funds
• Securing treatment for his nephew Noah McRae
• Advertising services for the welfare department or “Families First for Mississippi”

“Many of these items are privileged and protected from discovery. Other responsive items are not privileged, but should be produced subject to the entry of a protective order that preserves the integrity of these proceedings,” the motion reads.

The rationale for executive privilege – the ability for the nation’s top official to withhold information from the public – is that the communication is often “so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication,” according to the 1980 appeals court opinion in Coastal States Gas Corp., v. Dep’t of Energy.

Bryant’s attorney Billy Quin used the legal precedent in Watergate to make his argument. In that case, President Richard Nixon infamously refused to turn over nine tape recorded conversations in the White House, claiming executive privilege. In response, the court found that the president’s communication was privileged, but with the caveat that it could be compelled by a “sufficient showing of need.” 

The court struck down Nixon’s claim of privilege “because the information sought was relevant and necessary to the ongoing Watergate investigations.”

Mississippi law does not contain executive privilege protections for the governor, nor has the Mississippi Supreme Court addressed the issue. Though courts in other states, Quin pointed out, have adopted similar privileges for governors.

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.