Everything you need to know about the Petumenos report

Petumenos is the investigator appointed by the Palin controlled Personnel Board to conduct an in-house investigation of troopergate. Petumenos has cleared Palin of wrongdoing, but only by the expedient of interpreting the Alaska Ethics Statute in such a way that nothing counts as wrongdoing unless it leads to a financial benefit. This is ground I've covered before.

So, fine. What that leaves is that Palin used the apparatus of the state to pursue a personal vendetta against a low level employee, allowed her husband -- who had not been elected to any office and had no official standing -- unfettered access to the apparatus of the state for the purposes of pursuing that same vendetta, and then engaged in a coordinated campaign to cover-up and whitewash what had been done.

Apparently, lawyers disagree as to whether any of that is illegal. I think that tells you more about lawyers than it does about Palin.

So richly deserved

Several McCain advisers have suggested to CNN that they have become increasingly frustrated with what one aide described as Palin "going rogue." A Palin associate, however, said the candidate is simply trying to "bust free" of what she believes was a damaging and mismanaged roll-out. |CNN|

The story here is, once again, that Palin wasn't vetted. Had she been, McCain would have known that she has a history of stabbing political patrons in the back in order to advance her own career.

Meanwhile, I'd bet dollars to donuts that Palin perjured herself yesterday, and I note that this time around Thomas Van Flein didn't immediately make a copy of the sworn testimony available to the press (as he did with Todd a little while back).

More from below the waterline

Even beyond Todd Palin's manly stride into the perjury trap, there's plenty left for Governor Palin to worry about in Troopergate. Mudflats has a good post up exploring the possibility that the Legislative Council might launch an investigation into witness tampering during the cover-up.

And, yeah, there's a primary source (MSWord File!) on all this.

And: As for the worker's compensation business, Andrew Halcro is willing to take Murlene Wilkes at her word and accept Branchflower's finding that no wrongdoing occurred. I don't know. Pretty clearly, Jason Leopold overrreached. On the other hand, Todd Palin did gather information regarding Wooten's worker's comp case, and it is apparent that confidential material in Wooten's personnel file was shared, at the very least, between Todd Palin and Frank Bailey. If you agree with Les Gara that Audie Holloway's allegations of witness tampering are credible, then it seems to me that you have to continue to wonder what exactly happened at Harbor Adjustment services.

Update: Johanna Grasso's comment from Halcro's post:

OK, I'll Bite! Finding Number 3: The claim was handled appropriately at Harbor Adjustment Service because I made sure it was. I worked at Harbor, twice, for a total of 8 years. I left because I received a great opportunity to leave adjusting and become the manager of a property, liability, and workers' compensation claims department. I left in Harbor good standing. I was not told I was inelgible for rehire. I was not disgruntled and not insubordinate. I had returned numerous times to visit staff, including Murlene. I called 3 of the adjusters to say hello over the year since I had left. I had lunch with one adjuster, on a monthly basis, who still works there. We had been friends since 1991 but now she won't speak with me because she believes I lied in some way. Murlene's statement posted here is very false and causes me grave concern about my reputation. Murlene told me in a closed door meeting who Wooten was in relation to the governor. She told me that the Division of Risk Managment was pleased with my claims handling of the Wooten case. She told me the Division of Risk Management heard from someone in the Governor's office that they wanted the claim denied. I indicated that I would not handle his claim differently knowing this and I didn't care if the President wanted it denied; that I would not do it because of WHO the claimant was! I told her I would not deny it without the proper evidence as my license was on the line. I left Murlene's office frustrated that the Governor's long reaching arm was already felt in the few months Palin became Governor. I had to keep adjusting the claim and not think about who I was dealing with. In fact, I vented with others in the office about the Governor's office after that conversation. Murlene did not pressure me to deny the claim. The frustration, for me, was about the Governor's office more than anything else. I called the tipline about 3 weeks before Palin was nominated for VP. When I provided my statement to Branchflower in August 2008, I had NO idea he had already spoken with Murlene. I gave my very short statement and afterward, he said he had already spoken with Murlene and he would have to recontact her. Branchflower is the one who indicated to the legislators in September the Murlene may have lied and may have financial incentive to not say anthing due to her contract with the State of Alaska. I merely gave my statement and left! Yes, the claim was handled appropriately regardless of the information I had about who Wooten was and that the Governor's office wanted it denied for whatever reason. Afterall, when I denied benefits, MY license was the one on the line. |Johanna Grasso|

Todd Palin lied in his sworn statement, cont.

Last week, I documented the contrast between Todd Palin's sworn statement and the statements given by, among others, John Glass. The hanging question, it seemed to me, had to do with why Branchflower hadn't mentioned the lies.

And here's your answer. Branchflower didn't note the lies because he wrote the report before receiving Todd Palin's statement.

While it is true that in the absence of an interview with either Governor Palin or Todd Palin, the specific answers to questions such as these are left unanswered, it is likewise true that their apparent motives can be inferred from the circumstances, their actions, and their comments. |Branchflower Report, p. 67|

Moreover, Branchflower is may not have viewed himself as having authority to accuse Todd Palin of misconduct.

Todd Palin

The terms of my contract with the Legislative Council establish the framework within which I have been required to conduct my investigation and make my findings. Specifically, the "Statement of Work" provision required me to "...investigate the circumstances and events surrounding the termination of former Public Safety Commissioner Walt Monegan and potential abuses of power and/or improper actions by members of the executive branch." Todd Palin is not an employee of the executive branch, so his conduct is not a violation of AS 39.52.010 -- 39.52.965. Given the terms of the contract, I make no finding as to Mr. Palin's conduct. |Branchflower Report, p. 67-68|

Fair enough. But while we wait for the next investigation, here's a little something to chew on:

MR. BRANCHFLOWER: Do you have an opinion about his level of involvement in the day-to-day affairs of the working of the governor's office?

MR. WHEELER: I -- I think that he -- that he had a significant influence, in that he was always interacting with the -- the employees there. That any time I needed to get information to the governor, I would always go through Todd, because he was the only one I could -- could talk with, either via the cell phone or in person.

He -- I know that he got e-mails and stuff that he was in the loop on -- on activities. Because if -- if the governor was required to leave and go to Juneau or something, that Todd was always the one that would call me and let me know where they were and they they'd be five or ten minutes out.

So he -- yes, he was -- he know a lot of the stuff that was going on.
...
I would say that the first ladies from the two previous administrations, while they were involved in state business, it was primarily in functions and non -- or -- I can't think of the word right now. Private -- things like breast cancer awareness and, you know, representing the state in these -- in these nonprofit organizations. They all had an organization that they took to heart.

And I never saw that from Mr. Palin. You know, I basically saw where he was involved more with the day-to-day things than -- than going out and attending these specific things, or specific organizations. |Branchflower Report, p. 45-46|

So, basically, you've got Todd Palin acting as a shadow chief of staff with all of the power but none of the oversight (and then also he's a vindictive nutjob with boundary issues). Probably nothing for the grown-ups to be worried about.

Palin around

Item: The Alaska Legislative Council has agreed to share the confidential part of the Branchflower Report with Tim Petumenos, the investigator heading up the Personnel Board's investigation.

Item: Palin's Administration is now claiming that it will cost $15 million to comply with a media information request for copies of emails sent from private accounts. For the sake of consistency, the state government seems to be upping the fees it charges for unrelated info requests. The upshot is that Alaska's strong open records laws are now being enforced in a way that prices the public out of the market for public records.

Item: In other Palin email related news, a judge has ruled that Palin may continue to use private accounts for the time being, but has ordered the state to take measures to insure that any emails concerning public business will be preserved.

Item: I'm not quite sure what to make of this kerfluffle. Branchflower found that Colberg did not materially comply with his subpoena, Colberg claims that he did. My guess is that if Colberg provided the requested documents, he did so too late for their contents to be incorporated into Branchflower's report, and that this is the basis of Branchflower's finding. Again, though, I don't know.

Item: Owing to certain welcome distractions, I still haven't read the report all the way through. Maybe this weekend.

Item: As long as we're all meta-bellman here, I'm still using the troopergate tag, but it seems to me that the ongoing scandal regarding Palin's secret email accounts may need it's own gate.

Can't stop, won't stop

The state Personnel Board investigation of Gov. Sarah Palin's firing of Walt Monegan has broadened to include other ethics complaints against the governor and examination of actions by other state employees, according to the independent counsel handling the case.

The investigator, Tim Petumenos, did not say who else is under scrutiny. But in two recent letters describing his inquiry, he cited the consolidation of complaints and the involvement of other officials as a reason for not going along with Palin's request to make the examination of her activities more public.

Two other ethics complaints involving Palin are known. One, by activist Andree McLeod, alleges that state hiring practices were circumvented for a Palin supporter. The case is not related to Monegan's firing. The other, by the Public Safety Employees Association, alleges that trooper Mike Wooten's personnel file was illegally breached by state officials. |ADN|

Will post links to the Petumenos letters if I find them.

Other news in the story is that Petumenos has requested a copy of the Branchflower report, and the Legislative Council will vote Thursday to decide whether to provide it.

Relatedly, Isikoff reports:

But the board ended up hiring an aggressive Anchorage trial lawyer, Timothy Petumenos, as an independent counsel. McCain aides were chagrined to discover that Petumenos was a Democrat who had contributed to Palin's 2006 opponent for governor, Tony Knowles. Palin is now scheduled to be questioned next week, and the counsel's report could be released soon after. "We took a gamble when we went to the personnel board," said a McCain aide who asked not to be identified discussing strategy. |Newsweek|

(via)

Reading the Branchflower Report, or L'etat c'est Todd

In today's edition, I pick a page at random:

Testimony of Deputy Commissioner John D. Glass regarding a conversation in the spring of 2008 with Todd Palin about Trooper Mike Wooten

Deputy Commissioner Glass testified as follows about another conversation he had with Todd Palin about Trooper Mike Wooten:

MR. BRANCHFLOWER: Did there come a time in the spring of 2008 when you spoke to Todd Palin again about Mr. Wooten?

MR. GLASS: Yes, there was.

MR. BRANCHFLOWER: Can you explain what the circumstances were?

MR. GLASS: I was in Juneau working and talking with the Legislature concerning the proposed new State crime lab. As I was going up to or coming out of the third floor, I'm not sure which, but right at the top of the stairway, I ran into Todd Palin. I know the date was after the Iron Dog because I asked him about his injuries that he had received on the Iron Dog and he told me what that was. We started talking about Michael Wooten and that Todd was adamant that Wooten was a very poor example for a trooper and needed to be fired, that he shouldn't be a trooper, and I went through the same exact conversation basically that I had had with Mr. Bailey, in that Wooten had already been penalized for his actions that he had taken. It was two and a half/three years ago, we could not fire him. I had the wrongful discharge. I had the binding arbitration discussion with him, and I also warned him that it was going to cause some extreme amount of discomfort and embarrassment for the Governor if they continued to pursue this and it should never become public. That it would just be not good for the Governor if it continued, and that they needed to cease and desist. He persisted in telling me that Wooten needed to be fired, he should not be a trooper.

MR. BRANCHFLOWER: The conduct for which Trooper Wooten had already been disciplined was, I think, perhaps it was mentioned in either this interview or maybe not, but are we talking about the Tasering, the DWI, the moose hunting incident, and so forth?

MR. GLASS: The alleged DUI, the moose hunt poaching. Actually, it wasn't moose poaching, it was shooting his wife's moose on a permit that she had that she did not want to shoot the moose. His alleged drinking and driving, his Tasering of his 11 year old stepson, and the activity that had been earlier mentioned, yes.

|Branchflower Report, p. 144|

Pretty much speaks for itself. But let's contrast it with something else anyway:

I was not aware of the Grimes Report until July 2008, after Monegan left the government. The DPS never informed me or my wife that Wooten had been disciplined. All we knew is that Trooper Wooten would repeatedly tell Molly that no one would ever punish him because he was a trooper, and that Trooper Wooten continued to be assigned to patrol the neighborhood of my family, even after he had threatened to kill my father-in-law.

|Todd Palin's statement in response to subpoena, p. 3|

As I wrote before, it's hard to see how to read this as anything other than Todd Palin lying under oath.

Addendum: In weird coincidence news, CNN has a story up focused on the same passage. In weirder coincidence news, this was my second try at selecting a random page, because on the first try I came up with the same page Mudflats is talking about.

CNN sheds light on Todd Palin's perjury defense:

"I felt it was more of the same with troopers protecting a 'brother' officer," Todd Palin told Branchflower in written answers provided through his attorney. They were delivered on Wednesday, after he had resisted a subpoena for three weeks, and were not included in Friday's report.

Glass said Sarah Palin had been questioning the loyalty of state police officials before Monegan's firing. But Glass added: "I don't think there's anybody that would really question our loyalty to her, because we have been trying to avoid this whole situation." |CNN|

One thing that's striking here and elsewhere is that the defense of Todd Palin's actions almost always tends to make him look worse. The clear picture here is of an ally making a futile attempt to get Todd Palin to pull back from a dangerously self-destructive course of action. Rather than re-examining his preconceptions, or even understanding that they have been challenged, Todd Palin assumes bad faith on the part of anyone who raises objections and keeps going full stream ahead. Stupid, stubborn, and lacking any kind of ethical compass. Todd Palin sure is a piece of work.

Super duper troopergate timeline

---

About this timeline: This post will continue to evolve. Suggested additions are welcomed in comments.

And: If you don't know it already, you should know that the Anchorage Daily News is the place to start for information about troopergate.

Bonus Resource: Canary Papers: The Sarah Palin -- Troopergate Timeline: A Sordid Tale of Corruption, Squalor, and Lies

---

[7/13/08] Palin abruptly fires Monegan, replacing him with Kenai City Police Chief Chuck Kopp, a prominent member of Alaska's Christian conservative community.

• Alaska Anonymous: Sarah Axes State's Top Cop

[7/18/08] Palin, first beginning to face allegations that the firing was improper, says “We would never prohibit, or be less than enthusiastic about any kind of investigation. Let’s deal in the facts, and you do that via investigation."

• Let's Get It Right: I believe in Sarah
  
• Alaska Pride: Governor Sarah Palin Gives Alaska Department Of Public Safety Commissioner Walt Monegan The Bum's Rush

[7/22/08] Chuck Kopp, Palin's hand picked successor to Walt Monegan, admits to having been reprimanded for sexual harassment during his tenure as Kenai police chief.

• Mudflats: Walt Monegan and the Other Ex-Commissioner of Public Safety.

[7/24/08] Despite apparent proof to the contrary, Palin denies having known about Kopp's letter of reprimand.

• Alaska Pride: Alaska Department Of Public Safety Commissioner Charles Kopp Denies He Is A Sexual Harasser, Claims Hugs Were Just Platonic

[7/25/08] Kopp steps down.

[7/29/08] Palin pledges cooperation after the Legislative Council votes 12-0 to hire independent investigator Stephen Branchflower.

[8/12/09] Despite criticism from both Republicans and Democrats in the state legislature, Palin directs Attorney General Talis Colberg to conduct his own investigation in advance of Branchflower's.

[8/13/08] AG's investigation uncovers tape of close Palin aide Frank Bailey phone call pressuring DPS to fire Wooten.

[8/14/08] Palin admits staff, including Colberg, made at least 20 calls and that "the serial nature of the contacts could be perceived as some kind of pressure, presumably at my direction."

[8/15/08] Branchflower begins work on his investigation.

[8/20/08] Frank Bailey placed on paid leave pending outcome of the investigation.

[8/29/08] Palin tabbed as McCain's pick for VP.

[9/1/08] Because Colberg and the rest of her staff are all subjects of the investigation, Palin hires a private lawyer, Thomas Van Flein, to represent her office.

[9/2/08] Van Flein challenges authority of legislature to conduct investigation, demands move to Palin appointed Personnel Board.

[9/3/08] In an effort to secure jurisdiction for the Personnel Board, Palin files an ethics complaint against herself.

[9/4/08] Citing concerns over jurisdiction, Frank Bailey and other Palin aides cancel previously scheduled appointments to give sworn testimony to Branchflower.

[9/5/08] PSEA files complaint on Wooten's behalf as evidence emerges that Frank Bailey had access to confidential information contained in Wooten's personnel file.

[9/5/08] Representative John Coghill airs first accusations of partisanship, initiates campaign to have Hollis French ousted as manager of the investigation.

[9/9/08] After reviewing Coghill's allegations, Legislative Council Chair Kim Elton refuses to remove French.

[9/9/08] Lt. Governor Barnhill sends a letter to Legislative Council Chair Kim Elton offering administration cooperation with subpoenas in exchange for agreement that administrative employees have right to access confidential employment files.

[9/11/08] Thomas Van Flein alleges that Branchflower is acting unethically, demands that he stop deposing witnesses.

[9/12/08] Responding to Barnhill's offer of 9/9/08, Kim Elton notifies Barnhill that the Legislative Council accepts the administration's interpretation of law regarding personnel files.

[9/13/08] After Branchflower presents evidence that the governor's office attempted to intercede in a Workers Compensation proceeding, the majority Republican Senate Judiciary Committee votes to subpoena 13 witnesses, including Todd Palin and several high ranking members of Palin's administration.

• Andrew Halcro: Sept 13: Fact Check

[9/13/08] Barnhill acknowledges Elton's acceptance of the deal, and lays out his plan for scheduling interviews with Branchflower.

[9/16/08] Newsweek's Michael Isikoff reports that the McCain has sent high-powered GOP fixer Edward O'Callaghan to Alaska to coordinate the troopergate cover-up.

[9/16/08] While still claiming executive privilege for all other correspondence, Palin produces emails purporting to show that Monegan was fired for insubordination relating to the budget.

[9/16/08] Palin rescinds pledge to speak to Branchflower.

[9/16/08] Five Republican members of the state legislature file suit seeking an injunction to halt Branchflower's investigation.

[9/16/08] Citing lack of probable cause, Palin submits a filing asking the Personnel Board to dismisss the ethics complaint she filed against herself.

[9/17/08] Attorney General Colberg announces that state employees will not honor subpoenas.

[9/18/08] Todd Palin announces that he will not honor subpoena.

[9/19/08] Todd Palin and two administrative employees fail to comply with subpoenas.

[9/19/08] Murlene Wilkes, the contractor charged with handling workers compensation claims, does appear, changing her statement to indicate that Todd Palin had met with her and instructed her to deny Wooten's worker's compensation claim, under threat of losing her firm's $1.2 million contract.

[9/19/08] ABC News uncovers documents which appear to contradict Palin's account of Monegan's alleged insubordination.

[9/25/08] With no explanation offered, Frank Bailey returns as director of boards and commissions.

[9/25/08] Attorney General Talis Colberg files suit to have the Legislative subpoenas quashed on the grounds that they were improperly issued.

[9/26/08] Palin chief of staff Mike Nizich and six other state employees fail to comply with subpoenas issued by Branchflower.

[10/1/08] McCain campaign releases deceptive ad aimed at discrediting Branchflower investigation.

[10/6/08] Attorney General Talis Colberg announces that each of the seven state employees who had failed to comply with Branchflower's subpoena has, in light of the Alaska Superior Court ruling, decided to cooperate.

[10/8/08] Todd Palin complies with Branchflower's subpoena.

• The Bellman: In other news
  
• The Bellman: Reading Todd Palin's statement

[10/9/08] Alaska Supreme Court denies appeal to stop the Branchflower investigation.

[10/9/08] Alaska Superior Court hears lawsuit seeking to require the State of Alaska to preserve Palin's private emails.

[10/10/08] Branchflower delivers report to the legislature, finding that Palin, in violation of the Alaska Ethics Statute, abused her authority as governor.

• The Bellman: Branchflower's recommendations to the legislature
  
• Vote Palin Weblog: Analysis of Branchflower Report, Part I
  
• Mudflats: The Release of the Branchflower Report
  
• Andrew Sullivan: Abuse Of Power
  
• Hilzoy: The Palin Report

[10/10/08] Alaska Superior Court Judge Craig Stowers orders the preservation and retrieval of private account emails concerning state business.

• The Bellman: The tip of the iceberg

[10/11/08] Palin asserts that she has been exonerated by Branchflower's report, saying to those who doubt her, "You've got to read the report."

• Talking Points Memo: Red Herring

[10/14/08] Petumenos expands scope of Personnel Board investigation.

• Political Animal: Troopergate isn't quite done yet
  
• Mudflats: Let the Troopergate Fallout Begin.
  
• The Bellman: Can't stop, won't stop

The question is moot! I'm in charge, I'm the host, I get the car.

The lawyers representing both Sarah and Todd Palin issued a three-page attack on the investigative report, including the contention that Ethics Act violations can only involve financial motives and financial "potential gain, or the avoidance of a potential loss."

"Here, there is no accusation, no finding and no facts that money or financial gain to the Governor was involved in the decision to replace Monegan," the lawyers said.

Any abuse of power, they said, was on the part of the Legislative Council members, not the Palins. |CNN|

Let's start by getting the facts straight. Is the Ethics Act limited in the way Palin's representatives are claiming? The scope of the Executive Ethics Act is given at Sec. 39.52.110 where it says that, "each public officer holds office as a public trust, and any effort to benefit a personal or financial interest through official action is a violation of that trust." The act goes on at Sec. 39.52.120 to describe misuse of official position, giving a list beginning with "(a) A public officer may not use, or attempt to use, an official position for personal gain, and may not intentionally secure or grant unwarranted benefits or treatment for any person" and also including, "(3) use state time, property, equipment, or other facilities to benefit personal or financial interests" and, "(5) attempt to benefit a personal or financial interest through coercion of a subordinate or require another public officer to perform services for the private benefit of the public officer at any time". Sec. 39.52.140.b prohibits use or disclosure of confidential information: "A current or former public officer may not disclose or use, without appropriate authorization, information acquired in the course of official duties that is confidential by law."

I suppose that you could take all of that together and conclude that phrases like 'personal or financial interest' are always and only talking about dollars and cents. Fair enough. I take you at your word. Please explain Sec. 39.52.225: "Before granting executive clemency to an applicant for executive clemency, the governor shall disclose in writing to the attorney general whether granting the clemency would benefit a personal or financial interest of the governor." My own view is that the ethics act extends beyond mere financial wrongdoing. I think I have the better of the argument.

So those are the facts. But let's unpack the defense. The argument is that (1) Nothing is an abuse of power unless it leads to a financial benefit. (2) Palin did not benefit financially from her actions. Therefore, (3) Palin did nothing wrong.

What on earth is that argument doing in a press release? The Governor used the apparatus of the state to pursue a personal vendetta against a low level state employee, but she didn't gain financially from it, so she did nothing wrong. Please try again.

The tip of the iceberg?

One thing to keep in mind as first reactions to Branchflower's troopergate report roll in is that the stonewall didn't crumble until the last days before the report was released. This had consequences. From Branchflower's introductory comments:

On October 6, 2008 Attorney General Talis Colberg announced that some of the above employees have decided they wish to honor their subpoenas and provide information about this case to the Legislative Council. Given that last minute decision and in view of the publication date of October 10, 2008 for this report, it has not been possible to include any such information herein. It is anticipated that the additional information will be submitted to the Legislative Council in a separate report prepared by the employees and/or the Attorney General. Their report is separate from and independent of my report.

Out of deference to her position, no subpoena was issued for Governor Sarah Palin. However, she was requested to cooperate with the investigation by providing a sworn statement. She has not done so. Governor Palin's sister Molly McCann was requested by me to give a deposition; she declined through her attorney. |Branchflower Report, p. 5|

The implication is that the Legislative Council will have to commission another investigation in order to complete the inquiry. A crucial question now has to do with the scope of that investigation. The Legislative Council could choose to take the $25,000 Branchflower didn't spend and hire someone off the street to write an appendix. Alternately, the Legislative Council could choose to widen the scope of the investigation. I, for one, would be eager to see hearings focused on Todd Palin's role in Alaska government. And what about those private email accounts? Surely the Legislative Council ought to investigate to determine whether the Palin administration attempted to evade Alaska's open records act.

Branchflower's recommendations to the legislature

There are two. They are located in Section VI of the report, 78 pages in.

The first recommendation concerns the statute regulating the release of confidential medical records. The statute as currently constructed does not require government officials obtaining medical records to provide a legitimate reason for doing so. In other words, the Palin administration did not break the law in obtaining Mike Wooten's confidential medical records because the statute is, to quote Branchflower, "inartfully constructed."

To get the flavor of the second recommendation, here is the opening paragraph of Branchflower's discussion of the issue:

In this case, there has been much said about the level of frustration that existed on the part of Sarah Palin's father Chuck Heath who filed the original complaint against Trooper Michael Wooten, and on the part of Sarah and Todd Palin, who attempted to learn the status of the investigation only to be told by Colonel Grimes that the matter was confidential by reason of AS 39.25.080. I believe their frustration was real as was their skepticism about whether their complaints were being zealously investigated. The irony is that the complaints were taken very seriously, and a thorough investigation was underway. However, the law prevented the Troopers from giving them any feedback whatsoever. |Branchflower, p. 80|

God as my witness, Sarah Palin will cite this admission as if it washed her cleaner of sin than a thirty day fast. Well, I don't know. This just brings me back to where I was when I first heard about Palin's actions in this case. Here's what I wrote back in August:

The question is, what is to be done? One idea would be to work to reform law enforcement so that police forces aren't filled with douchebags like Wooten.

That's not what Palin did. On the contrary, her appointment of Kopp to replace Monegan suggests that she had no interest at all in strengthening the mechanisms by which complaints against Division of Public Safety employees are handled.

Instead, Palin, chose to use the power of her office in an arbitrary one-off crusade to set things straight. That's about as serious an ethical slip as it is possible for a governor to make, and it is hauntingly similar to the arrogant disregard that the Bush Administration has shown for the rule of law. |dr|

Obv., if I wrote that today I'd replace 'reform law enforcement' with 'amend AS 39.25.080.'

Troopergate findings

The report is in, and the Legislative Council has agreed to release it. About 1000 pages of supporting documents are to remain confidential.

FINDINGS:

Finding Number One

For the reasons explained in section IV of this report, I find that Governor Sarah Palin abused her power by violating Alaska Statute 39.52.110(a) of the Alaska Executive Branch Ethics Act. Alaska Statute 39.52.110(a) provides

The legislature reaffirms that each public officer holds office as a public trust, and any effort to benefit a personal or financial interest through official action is a violation of that trust.

Finding Number Two

I find that, although Walt Monegan's refusal to fire Trooper Michael Wooten was not the sole reason he was fired by Governor Sarah Palin, it was likely a contributing factor to his termination as Commissioner of Public Safety. In spite of that, Governor Palin's firing of Commissioner Monegan was a proper and lawful exercise of her constitutional and statutory authority to hire and fire executive branch department heads.

Finding Number Three

Harbor Adjustment Service of Anchorage, and its owner Ms. Murleen Wilkes, handled Trooper Michael Wooten's workers' compensation claim property and in the normal course of business like any other claim processed by Harbor Adjustment Service and Ms. Wilkes. Further, Trooper Wooten received all the workers' compensation benefits to which he was entitled.

Finding Number Four
The Attorney General's office has failed to substantially comply with my August 6, 2008 written request to Governor Sarah Palin for infomration about the case in the form of emails. |APB|

Follow the link for the full report.


I probably won't read the report tonight, but the two most immediately important findings are One and Three. Finding three clears Palin in the arena where she faced the most serious legal jeopardy. Finding one confirms what has become patently obvious -- Palin failed to respect the proper boundaries of her office.

One last point before signing off for the night. These findings apply specifically to Governor Palin. Questions remain about the behavior of others, most especially Frank Bailey and Todd Palin.

Troopergate report delivered

A legislative panel convened this morning to receive a report on the Troopergate affair and after 25 minutes went into a closed session to question investigator Steve Branchflower.

Sen. Kim Elton, D-Juneau, chairman of the Legislative Council, gave no indication how long the secret session might last or when Branchflower's report might be made public.

But two lawmakers who've stepped out of the meeting briefly say it could be hours.

Senate President Lyda Green, a Wasilla Republican, and Rep. Peggy Wilson of Wrangell said the session is moving slowly.

How slow? Wilson was asked.

"Slooowwww," she said.

Each legislator, meeting at the Legislative Information Office in downtown Anchorage, had two big binders on the table in front of him or her - one green and a larger red one. They contain some 1,000 pages in all. |ADN|

...later reports put the length of the document at 200 pages. And then there's this:

Only a portion of the report is scheduled to be made public after the executive session, said state Sen. Kim Elton, the Legislative Council's chairman. A second part of the report contains "confidential" information and will be kept under wraps, said Elton, a Democrat who has been under fire from Palin's supporters. |CNN|

This post is not about the fact that the stock market has lost 35% of its value so far this year

As expected, the Alaska Supreme Court has affirmed (pdf!) the Superior Court's ruling. The Troopergate investigation will go forward.

Which is good to know, because it's done. The Alaska Legislative Council will receive Branchflower's report tomorrow.

(via)

Adding: Busy troopergate day tomorrow:

A lawsuit trying to force the state to hang on to e-mails that Gov. Sarah Palin sent from her private e-mail accounts hits the courtroom tomorrow. |ADN: Alaska Politics|

Obviously: You should be watching Maddow tonight. The troopergate segment begins about 35 minutes in (here on the East coast, and presumably in the central time zone as well, that means you can catch the re-broadcast about 5 minutes into Colbert).

Developing: It looks like Palin has cleared herself of all wrongdoing. Who'da thunk?

Reading Todd Palin's statement

It really is quite a document. I'm still working my way through it in fits and starts. As I noted yesterday, it is unmistakeably a political document. As a legal defense, though, the idea seems to be to heap all of the wrongdoing on Todd Palin's head. The theory is clear enough -- he isn't a government employee, and so many of the relevant laws don't apply to him -- but I just can't understand why the Palins think that the picture they're painting, with Todd Palin coming off as a nutjob with all but unrestricted access to the levers of state power, is one that insulates Sarah Palin from criticism. At the very best it makes Sarah Palin seem entirely out of her depth. As Governor.

Here's Todd Palin's answer to the question, "What communications did you have with Frank Bailey regarding Mike Wooten?"

We had a lot of conversations about a guy who threatened my family and verbally assaulted my daughter. We talked about my concerns. We talked about Wooten possibly pulling over one of my kids to frame them, like throwing a bag of dope in the back seat just to frame a Palin. We talked about Wooten's statements or actions against Molly and Wooten being a ticking time bomb mentally [Wooten a ticking time bomb?? -- ed.] and my concern for the safety of my father in-law and the rest of my family. I told Frank about my concerns about Wooten supposedly being disabled but at the same time riding snowmachines or motorcycles. I told him how I could not understand how a person like that could do all these things and still carry a gun and a badge. We communicated about Wooten being on shift but waiting in front of schools for 45 minutes while on duty running his kids around in a patrol car. [Wooten doesn't know the boundary between public and private?? -- ed.] Frank and I discussed Wooten a lot in the last few years, in person and over the phone and by email. I never asked Frank Bailey to call Rodney Dial for me about Wooten, but I repeatedly expressed my frustration to Frank about Wooten and, in my opinion, a flawed system that protected Wooten.

Apologies for the internal notes. I've got to type this stuff in manually, and I just couldn't help myself.

A note about the defense. The one and only defensible reason that Todd Palin or anyone in the Palin administration had for targetting Trooper Wooten would be a sincere belief that Wooten was a continuing threat to the governor or her immediate family. Lots of Todd Palin's answers, including this one, begin with an expression of fear about just such a threat. Regardless of whether those expressions are made in good faith, it's just clear as day that the obsession with Wooten went far beyond that. Todd Palin is here admitting to using the apparatus of the state in a personal vendatta. And by the way, even assuming good faith, his fears don't seem entirely rational to me.

In other news

Item: The troopergate lawsuit will be argued before the Alaska Supreme Court starting in about an hour.

Item: Check out the lead in today's Anchorage Daily News story about Branchflower's investigation:

With his Troopergate report due Friday, legislative investigator Steve Branchflower appears to have the makings of a fairly complete account, despite weeks of resistance from the Palin family and administration.

Branchflower has, or soon will have, answers from nearly all the people he'd hoped to question regarding Gov. Sarah Palin's firing in July of former Public Safety Commissioner Walt Monegan. |ADN|

Question for the lawyers: From where I sit, answering written questions in concert with high powered GOP lawyers doesn't sound all that cooperative. Other central figures, I think including Frank Bailey and Ivy Frye, complied with the subpoenas by routing statements through lawyers. That doesn't look cooperative either. But I don't know the rules. Is this how things are normally done?

Document of the day: Todd Palin's statement (pdf!) in compliance with Branchflower's subpoena. Media reports don't quite capture the strangeness of the document.

...page 3, line 14, looks like perjury to me. Todd Palin states that, "The DPS never informed me or my wife that Wooten had been disciplined." Monegan has said publicly that he informed the governor, and Frank Bailey, in the famous call, clearly knew that there had been an investigation.

...Jesus. This is the defense? From the top of page 4:

All of this upset me, and I had hundreds of conversations and communications about Trooper Wooten over the last several years with my family, with friends, with colleagues, and with just about everyone I could--including government officials. (In fact, I talked about Wooten so much over the years that my wife told me to stop talking about it with her.)

...to read this, you would never think that Todd Palin or his lawyer realize that there is any legal jeopardy here. The statement seems to be an entirely political document.

...pages five through ten of the statement list 17 general objections which are raised to each question. Funny stuff.

...who are these people, and how did they rise to positions of authority? Page 13:

In that same email, Monegan stated that he had heard a rumor from an unnamed source that Sarah was supposedly driving Trig, then around 9 weeks old, in her car without "an approved infant car seat" and that this situation could be "awkward." This odd an offensive email was forwarded to me. I was in Dillingham at the time. She was not happy with Monegan's false accusation or his implied threat that it was "awkward" as if he now needed to issue a citation. Sarah has always been a good mother and to accuse her of something like that was very offensive. Sarah responded that "I've never driven Trig anywhere without a new, approved car seat. I want to know who said otherwise--pls provide me that info now." (Emphasis added). I am not sure Monegan ever responded to the Governor's direct order.

Surprise, surprise, surprise

The seven Alaska state employees who had been resisting subpoenaes in the troopergate investigation have now agreed to speak to Branchflower.

Meanwhile, Todd Palin has still not agreed to speak to Branchflower, but will be interviewed by the investigator for the rival Personnel Board investigation. If the Personnel Board shared that statement with Branchflower, it is possible that Branchflower will consider that satisfactory (a deal along those lines was worked out with, I believe, Frank Bailey). However, the Branchflower report is due this Friday, October 10, whereas, Matt Volz reports that "Attorney Thomas Van Flein said he asked the investigator, Anchorage attorney Timothy Petumenos, to reserve the third week of October to interview Todd Palin."

The witness list:

• Dianne Kiesel, a state human resources manager

• Annette Kreitzer, state administration commissioner

• Janice Mason, Gov. Sarah Palin's scheduler and executive secretary

• Nicki Neal, state personnel and labor relations director

• Mike Nizich, Palin's chief of staff

• Kris Perry, director of the governor's Anchorage office

• Brad Thompson, state risk management director |ADN|

Addendum: CNN adds some detail to the story.

French said he believes statements could be taken without pushing back the scheduled Friday release of a report by Stephen Branchflower, the former Anchorage prosecutor conducting the investigation into Palin's July firing of Public Safety Commissioner Walt Monegan.
...
Palin attorney Thomas Van Flein told CNN that "all options are possible" for Todd Palin to participate in the Legislative Council's investigation, including a joint interview with Branchflower and Tim Petumenos, the investigator for the Personnel Board's inquiry.

Todd Palin will likely speak with Petumenos later in the month, Van Flein said, adding, "Ultimately, I think he will" participate in the legislative investigation. |CNN|

It's hard to say precisely what's going on here. On the one hand, Van Flein could really be expressing a willingness to have Todd Palin cooperate, so long as the report's release can be delayed a week or so. On the other hand, it could be one of those situations where hypothetical cooperation is always a few weeks into the future.

My reading of the situation is that Branchflower already has all of the information needed for his report and doesn't really need Palin's statement. If that's right, then the business regarding Todd Palin and his hypothetical willingness to cooperate is important mostly from the point of view of spinning Branchflower's report. As a test, let's see if the McCain campaign touts Todd Palin's hypothetical cooperation as evidence that there was no cover-up and asserts that Palin's hypothetical testimony, had it been heard, would have fully exculpated the office of the governor.

And they all fall down:

Todd Palin has been resisting a subpoena by lawmakers since mid-September. But with the Legislature's report on the matter due Friday, Palin has agreed to answer written questions submitted through his lawyer, McCain-Palin campaign spokeswoman Meg Stapleton said.

The questions were submitted to Palin lawyer Thomas Van Flein on Monday and are expected to be returned by Wednesday, Stapleton said. |CNN|

And away we go!!!

Highlights of Judge Peter Michalski's order Thursday dismissing a lawsuit asking for an immediate injunction blocking the troopergate investigation:

Under Malone, this is a matter for the legislative branch, not the judicial branch.
...
Consistent with the Malone decision, this issue is not justiciable.
...
Consistent with the Malone decision, this issue is not justiciable.
...
Consistent with the Malone decision, this issue is not justiciable.
...
Consistent with the Malone decision, this issue is not justiciable.
...
Because the committee has subpoena power and the legislature is operating within the constraints of the constitution, Malone applies for the reasons stated in Part II.B. Thus, this issue is also not justiciable.
...
When a legislative rule creates no right for an outside party, its violation does not fall within the Malone limitations.
...
Any allegation that the Senate Judiciary Committee has stepped outside its boundaries is, under Malone, an issue for the legislative branch, not the judicial branch.
...
This position is incorrect. "It is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
...
Fairness within a legislative context is different than fairness within a judicial context. It is expected that legislators will belong to some party and will support the positions of their party, often publicly.
...
Even if there had been a violation under this statute, this is not an issue for the court.

Source: (pdf!) Order of Superior Court Judge Peter Michalski, 2 October 2008.

In legal parlance, that's called a smack down. The appeal (pdf!) argues that Michalski erred in failing to note that the legislative misconduct, as it is every bit as bad as McCarthy's anti-communist crusade, rises to the level of a constitutional harm.

We'll see. The Supreme Court is holding hearings on Wednesday and is expected to rule before the scheduled release of the Branchflower report on Friday.

As I said the other day, owing to its clear frivolousness I hadn't been paying much attention to this lawsuit. However, something jumped out at me in one of today's reports:

"If this unconstitutional and unlawful investigation is allowed to continue, is completed, and if the resulting report is released as planned, Plaintiffs and Alaskans in general will suffer irreparable harm," lawyers for the Liberty Legal Foundation told the Alaska Supreme Court.

The Texas-based conservative group is representing Republican legislators who support Palin and are asking the Alaska Supreme Court to shut down the probe, which they call "biased." |CNN|

This is the first I'd noticed that the lawsuit is funded and masterminded out of Texas. Who is the Liberty Legal Foundation? From the Anchorage Daily News' story on Thursday:

The legislators suing to stop the investigation are also being represented by the Liberty Legal Institute, the Texas-based legal arm of the Free Market Foundation, which is associated with evangelical leader James Dobson's Focus on the Family and lists its guiding principles as limited government and promotion of Judeo-Christian values. |ADN|

Interesting. The Liberty Legal Institute is the legal arm of the organization. Both are run by Kelly Shackleford, who is the lawyer of record on the troopergate suit. The Free Market Foundation is a 501(c)(3) non-profit, so they are by law prohibited from engaging in partisan politics. I'm sure they've got a legal argument explaining why their involvement in Troopergate doesn't violate that law, but based on their track record I don't have much confidence in their reasoning.

But let's leave that aside. Why is Dobson bankrolling part of Palin's troopergate cover-up?

Update:

LLI is a member of the 75-member "Arlington Group", a Washington-based, religious-right consortium which seeks to influence government policy on issues such as abortion and same-sex marriage. The Arlington group was founded in 2002 through the joint effort of powerful members of the religious right including Jerry Falwell, James Dobson, Chuck Colson, D. James Kennedy, Gary Bauer and Rod Parsley.

The groups first director was James Dobson. |Source|

...here's another puzzle. This legal strategy obviously has no chance in hell of working. So why do it? On the plus side, this runs out the clock and keeps Todd Palin from testifying. On the downside, it can't help but raise the profile of the coverup, and Todd Palin's refusal to testify could look pretty bad when the report is released. Is the spin going to be that the Alaska Supreme Court is too liberal?

Troopergate Friday omnibus post

Item: Yesterday an Alaska court ruled against six legislators who had sued to have the Branchflower investigation stopped. I haven't written much about the case because it was pretty obvious from reading the filing (pdf!) that the case was entirely without merit. The upside of responding to a frivolous lawsuit, though, is that it gives the defense an opportunity to focus on the jokes:

As a final factual matter, though probably pointless in what has become a sharply political rather than legal back-and-forth, Defendants take issue with Plaintiff’s central point that the court must immediately enjoin the legislative investigation because”[a]s the nation watches, Senator French, Senator Elton and Mr. Branchflower [are making] the Alaska Legislature and the State of Alaska a laughingstock.” TRO Memo at 5. In this politically charged atmosphere, perceptions differ. Consider: Alaska’s Governor pledges her full cooperation with the investigation, then reverses course when selected for national office. The Governor files an ethics complaint against herself, then moves to dismiss it as meritless. The announcement that a witness will disobey an Alaska legislative subpoena comes from a spokesman of the McCain Campaign. Six Alaska legislators file suit, asking the court to rule that the Legislature – their own coequal branch – has no authority to investigate abuses of power by the Executive. The Attorney General, the highest law enforcement officer in the State, advises witnesses that whether to comply with subpoenas is a matter of personal choice.

Plaintiffs may truly believe that Alaska has become a “laughingstock,” but they should look at someone other than Defendants here for the source of the humor. |Source (pdf!)|

Item: Speaking of the Attorney General's advice, it had hinged crucially on the fact that this case was going forward. Colberg had argued, that is, that subpoenaed individuals might have real doubts as to whether they might, as executive branch employees, cooperate with a legislative investigation. My guess, and probably everybody's, is that he'll appeal this ruling and stick to his argument. It's a weaker argument today, but stinky fish is stinky fish.

Item: On the other hand:

Thomas Van Flein, the Anchorage attorney representing both Todd and Sarah Palin, watched the court hearing today. He said in an interview afterward that, if the judge refused to throw out the subpoenas, he would expect Todd Palin to testify after all.

"Short of appeal to the Alaska Supreme Court, which no one has talked about, I don't see why we wouldn't just have Todd testify," he said. |ADN|

Item: I really try to give Ross Douthat the benefit of the doubt -- because I really want there to be an honest conservative out there to engage intellectually -- but calling the scandal 'tasergate' is just stupid. I'm not saying 'troopergate' is a great name, and I'd rather we had a better one, but focusing on the tasering incident shows that Ross is either ignorant of the facts or in the tank.

Item: Speaking of Wooten, Jason Leopold's article yesterday fleshes out a little more detail about what happened with his personnel file. When Harbor Adjustment Services was told to reverse itself and deny Wooten's benefits, Johanna Grasso, the adjustor dealing with the case, initially refused, saying that she would not do so in the absence of a medical justification. Subsequently, the claim was denied -- in a letter signed by Grasso. We knew that part of what happened was that the Governor's office had provided Harbor Adjustment Services with pictures taken by Todd Palin of Wooten riding a snowmachine. Leopold adds to this story by reporting that, "according to documents in Wooten’s case, another apparent factor in denying his disability claim was a preexisting condition from the trooper’s days in the U.S. Air Force." This sheds light on the famous Frank Bailey call, where Bailey talked about the fact that Wooten had failed to disclose something in his employment application. Maybe this is what Bailey was talking about. Notably, when Wooten sued he won back his workers compensation benefits.

Item: By the way, I've never gotten around to writing a long post about how Troopergate is a labor issue, but if you haven't listened to the Bailey call (audio here) then you really should. The first few minutes are Bailey trying to get Lt. Dial to forward to him emails that the PSEA -- the union representing troopers -- sends to its members regarding ongoing contract negotiations. Not the worst thing in the world, and everybody does it, but slimy. Moreover, one of the things that becomes clear as the call goes on is that the Palin the campaign against Wooten had by then escalated to the point where it became the Governor's primary interest in contract negotiations with the union.

Item: Returning to Leopold's article, most of the interest has to do with the question of what Wilkes said when she spoke to Branchflower. Here's the key passage:

Wilkes’s sister, Carol Lindsey, in a series of email exchanges, vehemently denied that her sister changed her story during her testimony. Lindsey said the suggestion that Wilkes recanted her previous statement was an “outright lie.”

“I can only say that [Murlene] will tell anyone and everyone who asks her that she gave a statement and she has never changed that statement,” Lindsey said. “Beyond that I have no information. The story that she has changed her statement is a lie. You could ask her.”

A message left for Wilkes at Harbor Adjustment late Wednesday was not returned. Her attorney, Robert Erwin, a former Alaska Supreme Court justice, was out of the office Wednesday afternoon and did not return a message left for him.

Erwin’s daughter, attorney Roberta Erwin, represented Palin’s sister, Molly McCann, in divorce proceedings from Wooten.

Lindsey did not say whether Wilkes told her the substance of her testimony.

“I do not know the particulars of the case as this is a confidential matter,” Lindsey said in an email. |The Public Record|

Item: Mudflats has an update on the campaign to ensure that Branchflower's report is make public.

What did Wilkes say?

Murlene Wilkes' sister insists that Wilkes did not change her statement when testifying before Branchflower. Jason Leopold has the full story.

More later, must work now.