It’s also in Lt. Gov. Sylvia Luke’s best interest to have an independent inquiry so the public trusts the findings.
Lt. Gov. Sylvia Luke’s recent statements inserting herself into the $35,000 scandal make it imperative that Gov. Josh Green immediately appoint an independent special prosecutor.
While we have no idea what really happened or if Luke did anything wrong, what we do know is that a fair, impartial and full investigation is needed to restore public trust in government and in the lieutenant governor should she be found to have done nothing improper.
In my opinion, this cannot be done by the Attorney General’s Office given what has transpired to date due to a clear conflict of interest.
Recently, several legislators and Clean Elections Hawaiʻi, a coalition of 40 local groups promoting a pro-democracy agenda, have called upon Green to appoint an independent prosecutor given the unique circumstances presented here.
In response, the attorney general issued a press release stating that because one of the roles of the Special Investigation and Prosecution Division is to investigate public corruption, there is no cause to for the office to recuse itself as there is no “legal conflict of interest.” No analysis or explanation was given as to how the AG came to this conclusion other than to site SIPD’s general authority to investigate public corruption and the department’s independence from political influence.
The statement was followed up by a press conference on Friday where the AG again stated she would not recuse herself and claimed that “there is no legal process in Hawaii law for the appointment of a special prosecutor.” As I will discuss later, this statement directly contradicts the department’s written testimony made less than two years ago to Donovan Dela Cruz’s Senate Ways and Means Committee.
A “conflict of interest” is a legal concept embedded in the Hawaiʻi Rules of Professional Conduct and in case law. It arises when a prosecutor’s personal interests, prior professional relationships or duties to other clients create a substantial risk that they cannot act impartially, undermining the integrity of the prosecution.
A conflict of interest can be “actual” (currently influenced), “potential” (could be influenced), or “perceived” (appearance of bias) that threatens the fairness of the proceedings and to ensure the public’s confidence in the investigation.
While a conflict of interest can be determined to be insufficient to warrant recusing oneself, it cannot be legislated away simply by empowering a specific entity with the task of investigating public corruption. Events and circumstances of each situation must be analyzed. The decision cannot be made in a vacuum. One size does not fit all.
Moreover, it is neither offensive nor unusual for an attorney to raise issues of conflicts of interest in a legal proceeding. Raising issues of conflicts of interest is part of the legal process, it is not personal.
For example, Amemiya v. Sapienza, a landmark Hawaii Supreme Court case concerning the disqualification of a prosecuting attorney, is strikingly on point to the situation we are facing here. There, ironically, Attorney General Ronald Amemiya moved to disqualify the Honolulu prosecuting attorney from conducting a grand jury investigation into the Kukui Plaza Project scandal because one of the possible suspects was the mayor. Because the mayor appointed the prosecutor the AG moved to disqualify him and all his deputies who worked for him from prosecuting the case because it represented a conflict of interest.
The court agreed, stating in part: “because public trust in the scrupulous administration of justice and in the integrity of the judicial process is paramount, any serious doubt will be resolved in favor of disqualification.”
This reasoning applies with equal force here, with the AG’s office being the focus of the conflict. In my opinion, for the following reasons, a conflict of interest exists in this case, requiring the appointment of a special prosecutor.
First, while the Special Investigation and Prosecution Division was created by the Legislature in 2022 to investigate and prosecute complex crimes, including public corruption, it is a general mandate not necessarily designed to meet every situation. Again, one size does not fit all.
Here, the SIPD is located within the Attorney General’s Office. The SIPD’s boss is ultimately the attorney general herself.
And while there may be a measure of independence granted to the office and the AG in general, according to the state’s own “Plan of Organization” the AG’s direct supervisors are the lieutenant governor and the governor.
This chain of command itself creates a conflict of interest when the AG, or one of her deputies in the SIPD, is asked to investigate her direct superior, as is occurring here. It is no different than the situation in Amemiya v. Sapienza when the county prosecutors were being charged with investigating the mayor, their direct superior.
For example, if the SIPD was tasked with investigating one of its own, there can be little doubt that a conflict of interest exists. The situation here is no different. A conflict of interest or the appearance of a conflict of interest surely exists when SIPD is asked to investigate its boss. The fact that the SIPD was created, in general, to investigate public corruption does not insulate itself from all conflicts of interest as is being argued by the AG.
Second, the attorney general has now created by her own lack of candor yet another reason to question the department’s ability to conduct a fair, neutral and impartial investigation when she erroneously claimed she did not have the authority to appoint a special prosecutor. At her Friday press conference, the AG stated categorically that she does not have the authority to appoint a special prosecutor. This statement directly contradicts her own office’s written testimony made before the Senate Ways and Means Committee on March 2, 2024, less than two years ago.
There the office wrote in opposition to a proposed bill (Senate Bill 2107) which would have amended HRS 28-8 to specifically authorize the AG to appoint special counsel when “the investigation or prosecution of a person or matter may present a conflict of interest for the Department.” That written testimony by the AG’s office, made two years after the creation of the SIPD unit, specifically acknowledged that the AG did, in fact, have the authority under HRS 28-8 to “appoint special deputy attorneys general” when the office has a conflict, and more importantly, explained just how its authority would work should the need arise.
For example, the attorney general may request any of the four county prosecuting attorneys to investigate and prosecute criminal acts when she or the office has an unresolvable conflict of interest. The county prosecuting attorney may then exercise his or her prosecutorial discretion without involvement or interference by the attorney general.
The AG concluded that the bill should be deferred, meaning killed, because “while well-intended, (it) is ultimately unnecessary.” The bill died in committee.
Presenting one position to a Senate committee to have a bill killed in 2024 and then taking the exact opposite position in 2026 to now justify why the office cannot appoint a special prosecutor raises troubling questions regarding the office’s candor and ability to act in the public’s best interest. The public must have trust in the integrity and neutrality of the process to ensure that the ultimate findings of the investigation, whatever they may be, are believed to be a result of a fair and impartial process. These contradictory statements do just the opposite and mitigate in favor of recusal.
A third possible conflict of interest involves the perceived impartiality and neutrality of the attorney general which appears to be in question again due to her own actions. For months the AG refused calls to conduct an independent investigation. And while the AG claimed she was unwilling to conduct a state investigation because it would “interfere with the ongoing federal investigation,” her justification is subject to criticism.
In my Nov. 23 essay in Civil Beat, “The Case For A State Inquiry Into Which Legislator took $35,000 In A Paper Bag,” I detailed why the position of the attorney general was based entirely upon a faulty premise, and I will not repeat that argument here.
Of more import is that it wasn’t until January that the AG reluctantly agreed to take on this investigation amidst pressure by the governor to do so. This reticence and delay by the AG does little to instill trust in her willingness to conduct a full, unbiased and independent investigation.
A fourth potential conflict of interest or the appearance of a lack of neutrality is the troubling and still unresolved affair surrounding the attorney general allegedly having conversations with House Speaker Nadine Nakamura.
In direct contradiction to numerous press releases issued by the Attorney General’s Office stressing that any discussions or disclosures during an ongoing criminal investigation is inappropriate in order to “preserve the integrity of the investigation,” it appears the AG did just that.
In a letter to Nakamura dated Feb. 2, five representatives detail how Nakamura informed all the members of the House, in a letter dated Jan. 30, that:
“Today, the House passed House Resolution No. 8, which urges the Attorney General to prioritize and expedite the state investigation. I have spoken with the Attorney General, and she has committed to doing so. While the Attorney General has made clear that she cannot disclose specific details about the investigation while it is ongoing, she has also committed to providing general status updates to members regarding the process at appropriate time. I will keep in regular contact with her until this matter is resolved.”
According to this letter, House members were also informed by Nakamura that she had been told by the AG or a member of her office that the investigation was not expected to be concluded until August.
This allegation of communications between the AG and Speaker Nakamura was repeated in a written letter by Reps. Della Au Belatti and Kanani Souza to Green on Feb. 2. Green has yet to respond to that letter.
In response, the AG issued a press release categorically denying ever having told the Speaker the investigation would be concluded by August, while not addressing the overriding issue of whether there had been communication between the two.
Nakamura, in turn, while remaining generally mum about the entire affair, issued a press release stating that she “has not received any investigative details that would influence the investigation” regarding the ongoing probe into a “mystery lawmaker” accused of accepting $35,000. That statement constitutes neither a denial that she was in communication with the AG nor that she’d been informed of when the investigation may be concluded. Rather, it is an admission that there had indeed been communications but that in Nakamura’s opinion, whatever was told to her would not “influence the investigation” and was therefore harmless. This flies in the face of the AG’s repeated press releases that assert that even commenting on the “status of an investigation” is improper.
Either the AG is not being forthcoming, or we are being led to believe that Speaker Nakamura, orally and in writing, misled the entire House of Representatives when she told them the AG informed her the investigation would be concluded in August and that she was being kept informed of the status of the investigation. It’s an either/or situation. There is no middle ground.
Meanwhile, Green, on Hawaii News Now’s “Spotlight” show on Jan. 28, explained in detail why he believed the investigation should be concluded by spring. Not August.
So just who is the AG talking with? The governor? The speaker of the House? Either way, these actions clearly call into question the credibility of the AG’s office and at the very least raise the appearance of a conflict of interest with the AG supervising this investigation, and that doesn’t instill confidence in a fair, impartial and full investigation.
Meanwhile, the complete silence from almost every other state representative, on both sides of the aisle and in both chambers, is deafening. This is one of the biggest scandals to hit Hawaiʻi since the Kealoha case and when former Rep. Ty Cullen and Sen. J. Kalani English were charged and convicted of taking bribes. Yet the political establishment remains on the sideline waiting to see which way the winds blow.
And the citizen’s petition signed by 929 Hawaiʻi citizens? While the Senate killed it in the last moments of the opening day of the session where no one would take notice of what it was doing, its sits unfiled and unacted upon in the House. As Nakamura stated in a letter to Belatti and Souza, she hasn’t made a “final decision on the disposition of the petition.” These words could imply that she simply hasn’t figured out the right moment to kill it.
Given all these factors, coupled with the authority of the AG to appoint an independent prosecutor, it is incumbent upon the governor to step in and right the ship by appointing an independent special prosecutor.
Importantly, it is also in Luke’s best interest to have an independent special prosecutor appointed because if she is found to have done nothing wrong by the AG, many people, unfortunately, will think it is shibai and the public’s trust in the AG and in the government will not have been restored. If anything, such a ruling by the AG may make matters far worse in the eyes of the public. That is far less likely to happen if an independent prosecutor makes that same finding.
The public is simply asking for transparency, accountability and that all members of the government be held to the same standards as everyone else in the community. Is this too much to ask?
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