Texas A&M University is trying to withhold dozens of emails from The Intercept about a new research center funded by conservative megadonor Leonard Leo, according to a filing to the state attorney general under Texas’s public records law.
The Intercept filed rebuttals with the state attorney general’s office, which must sign off on such nondisclosures under the law, arguing that the exemptions invoked do not apply.
Leo made a $15 million commitment in 2022 to Texas A&M Law to establish the Center on the Structural Constitution, The Intercept reported last month.
The co-chair of the Federalist Society, whose activism and philanthropic efforts helped foment a rightward lurch in the judiciary, including the Supreme Court, had previously workshopped a center with an almost identical name at Cornell Law School, his alma mater. But opposition from Cornell faculty ultimately killed the proposal.
Through a representative, Leo previously declined to answer The Intercept’s questions about the Texas A&M center, including when he first approached the school with the idea. Similarly, both Texas A&M and its law school declined to answer questions about the donation.
However, former Texas A&M President Michael Young, who now teaches at the law school and tapped Leo to serve as an external adviser for his own research institute, confirmed that the donation to establish the Center on the Structural Constitution came from Leo.
The Intercept sent Texas A&M multiple public records requests about the center and Leo’s donation, which was “among the largest donations ever received by Texas A&M University,” according to an announcement from Texas A&M Law, which did not name the donor.
The Reappearing Agreement
In response to a request for the gift agreement signed by the law school for the donation, the university said it could not locate any documents.
Large donations to the Texas A&M Foundation — an affiliated nonprofit which received the first $5 million installment for the center in 2022, according to tax records — require written agreements, according to foundation rules. Asked about the requirement, the university provided a copy of the agreement, with the donor’s name redacted.
R. Brooks Moore, deputy general counsel for Texas A&M, quibbled in response to questions from The Intercept that the earlier response “was not a comment on the existence of a particular gift agreement or agreements.”
The agreement was between the donor and the Texas A&M Foundation, as opposed to between the donor and the university itself, wrote Moore: “Texas A&M does not control the Texas A&M Foundation or its records/information. Therefore, Texas A&M’s response is accurate and in compliance with the Texas Public Information Act.”
The redacted gift agreement provided to The Intercept, however, was signed by then-Texas A&M President M. Katherine Banks and Robert Ahdieh, the law school’s current dean. Under the agreement, Texas A&M committed to seek approval from the Board of Regents to establish the center.
According to the agreement, the Texas A&M Foundation and university also said they would not “publicly name or recognize the Donor without prior express approval.”
The Disappearing Emails
Now, the university is fighting to withhold dozens of the law school dean’s emails about the center.
According to responses to The Intercept’s records requests, Ahdieh exchanged emails with Leo himself at some point since 2019. And, since January 2022, Ahdieh also sent or received dozens of emails related to Leo’s primary dark-money fund, the Marble Freedom Trust.
In letters to the Texas attorney general’s office, the school claims some of these emails are protected under state laws that shield competitive bidding processes and the identities of donors to higher education institutions.
“The university has not disclosed or confirmed the identity of the donor or donors making any gift that is mentioned in the article.”
“The university has not disclosed or confirmed the identity of the donor or donors making any gift that is mentioned in the article,” Moore wrote, noting The Intercept’s reporting.
These exemptions do not apply, The Intercept’s filings contend, since Leo already committed to fund the center and has already been identified as the donor through extensive reporting. (In addition to filing the requests and responses in the course of my reporting for The Intercept, I am also one of its attorneys.)
Texas A&M also requested authorization to withhold other emails to and from Ahdieh under an exemption from the public records law that protects policymaking deliberations. This provision does not apply for many reasons, The Intercept argued, including that the law school has already secured funding for the center and hired its first director.
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