TOPEKA — Two of three Kansans nominated to the U.S. District Court were questioned Wednesday during a joint U.S. Senate confirmation hearing about their role in the August 2023 raid by law enforcement officers of the Marion County Record that prompted international condemnation for trampling constitutional rights to freedom of the press.
Nominee Tony Mattivi, director of the Kansas Bureau of Investigation, was asked about the KBI’s part in the raid on the newspaper office and publisher’s home that resulted in settlements of $3 million to address legal claims against Marion County. A second nominee, Great Bend attorney Jeff Kuhlman, was hired to represent the Marion County Sheriff’s Office and Marion County public officials in lawsuits filed by the newspaper and staff members. Kuhlman’s clients were covered by the multimillion-dollar settlement.
Federal lawsuits associated with the raid are pending against the city of Marion, the city’s former mayor and the city’s former police chief.
U.S. Sen. Dick Durbin, D-Illinois, posed questions about the Kansas newspaper raid after Mattivi, Kuhlman and Kansas Solicitor General Anthony Powell were introduced and endorsed by U.S. Sens. Jerry Moran and Roger Marshall, both Kansas Republicans. Durbin said Mattivi initially expressed support for the raid to advance investigation of “credible allegations” of wrongdoing at the newspaper. Special prosecutors who reviewed the evidence eventually cleared the journalists.
Durbin asked Mattivi and Kuhlman about the raid in the context of their understanding of the First Amendment to the U.S. Constitution outlining the right to freedom of the press.
Mattivi, who served as a federal prosecutor before being named KBI director in 2023 by Attorney General Kris Kobach, said initial media reports about the KBI’s involvement were incorrect.
“There was no KBI agent present in the raid,” Mattivi said. “I have to be careful about talking about the raid itself, because there is still litigation pending. Of all the litigation that took place in that case, the KBI was not a party to it. I think that demonstrates conclusively what the KBI’s involvement was.”
Kansas Reflector first reported on the raid, and never reported that KBI agents were present during the raid.
However, Kansas Reflector reporting revealed that KBI agent Todd Leeds met with Marion County Sheriff Jeff Soyez and then-Marion Police Chief Gideon Cody two days before the raid. They reviewed evidence that had already been gathered by law enforcement officers about possible criminal activity involving the newspaper. Information disclosed during subsequent litigation asserted Joel Ensey, the Marion County attorney, understood the KBI was interested in search warrants for any devices that could have been used by newspaper staff to access state driving records at the center of the investigation.
Newspaper staff did examine public records available through the Kansas Department of Revenue website, which isn’t a crime.
Marion police sent copies of the search warrants to the KBI a day before carrying out the raids. The officers ignored state and federal laws that protect journalists and their source materials from search warrants.
Kuhlman, who has a private law practice focused on civil cases, said he was retained in wake of the raid by Marion County officials who anticipated they could be named as defendants in lawsuits.
“My clients were the ones who entered that consent judgment that (Durbin) referenced that resulted in the payout of $3 million,” he said.
Mattivi and Kuhlman said they believed the First Amendment was a foundational principle and that, if confirmed, they would apply court precedent in cases tied to freedom of speech and the press.
“I believe they are foundational underpinnings of our society. I believe the press is absolutely protected under the First Amendment,” the KBI director said. “At the same time, I believe the press is not above the law nor is any individual.”
In February, President Donald Trump nominated Mattivi, Kuhlman and Powell to fill vacancies on the U.S. District Court. Trump appointees hold three other spots on the federal bench in Kansas. Judge Holly Teeter of Kansas City, Kansas, and Chief Judge John Broomes of Wichita were confirmed by the U.S. Senate in 2018, while Judge Toby Crouse of Topeka was confirmed in 2020.
The Senate Judiciary Committee didn’t vote on the Kansas nominations. Senators have the option of submitting written questions to the nominees until April 22, and the committee and full Senate votes could occur after that date.
Marshall and Moran, who took part in narrowing the list of potential judicial nominees, encouraged the committee to recommend all three for confirmation to lifetime appointments to the federal court. Former U.S. Sen. Pat Roberts, who retired in 2021, briefly appeared before the committee to urge support for Mattivi’s nomination.
“This is one of the most consequential responsibilities of a U.S. senator,” Marshall said. “Senator Moran and I worked carefully through a strong list of candidates and these three stood out.”
Moran said he was impressed by Mattivi’s 20 years as a federal prosecutor and his experience gained through leading the KBI. Moran said Powell was unusual because he served in all three branches of state government during his career. Powell was elected to the Kansas House and he served as a Sedgwick County District Court judge and as a judge on the Kansas Court of Appeals. Powell has been part of the executive branch while working as solicitor general in the office of the attorney general.
In terms of Kuhlman, Moran said he was committed to placing on the U.S. District Court an individual with a background rooted in rural Kansas. He said Kuhlman chose to live in Great Bend, where Moran was born and Marshall practiced as a physician.
“I had a specific goal of making certain we found candidates for nomination that came from small places across our state,” Moran said.
During the confirmation hearing, all three nominees said they were “textualists” in terms of interpreting statutes and “originalists” when considering constitutional issues. In other words, each said they would focus on plain meaning of the law as written rather than explore external issues considered by those who drafted a statute. At the same time, they vowed to interpret the U.S. Constitution based on its original, fixed meaning instead of interpreting the constitution in ways that created new law.
U.S. Sen. John Kennedy, R-Louisiana, questioned Powell about his definition of textualism in judicial matters. The senator repeatedly interrupted Powell as he attempted to respond, especially to notions of ambiguity in statute.
“It means you follow the words of the text of the statute,” Powell said. “The plain meaning of the words in front of you are what guide you.”
Kennedy asked Kuhlman to consider ramifications of 200 protesters blocking traffic on a New York City street to denounce the Trump administration’s engagement in military conflict and immigration enforcement. He asked Kuhlman to explain how he might defend the protest leader in a lawsuit if an individual died because the blockade prevented a medical transportation service from delivering a donor heart to a nearby hospital.
“In any hypothetical,” Kuhlman said, “I would hesitate to completely prejudge the situation without knowing all the facts —”
“Come on, counselor,” Kennedy said. “Give me your legal opinion. This is a first-year law student question.”
Kuhlman said the family of the deceased individual would likely have grounds to file suit.
In terms of Mattivi, Kennedy offered a different hypothetical. It involved a teenager who applied for a job at McDonald’s and was informed by management that she might be hired except for the fact she wore a burka and the company banned display of religious symbols. Burkas are an outer garment worn by some Muslim women to cover the body and face.
“The law prohibits the application of a religious test applied by the government, not by private employers,” Mattivi said.
“Oh, are you sure about that?” the senator said. “Can McDonald’s say: ‘We have a policy against religious symbols and you can’t wear a burka?’ Who’s going to win? McDonald’s or the person wearing the burka?”
“Honestly, senator, I’m not sure who would win in that situation. I’d need to know more facts,” Mattivi said.
Kennedy’s reply: “I appreciate your honesty.”
(The original Kansas Reflector story can be found at Two Kansas nominees for U.S. District Court answer questions about ties to Marion newspaper raid • Kansas Reflector
