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?

ozarks

"Ozarks" is a toponym believed derived as a linguistic corruption of "aux Arkansas" in the decades prior to the French and Indian War. Eventually, the term came to refer to all Ozark Plateau drainage into the Arkansas and Missouri Rivers.

Other possible derivations include "aux arcs" meaning "toward the arches" in reference to the dozens of natural bridges formed by erosion and collapsed caves in the Ozark region. These include Clifty Hollow Natural Bridge (actually a series of arches) in Missouri, and Alum Cove in the Ozark-St. Francis National Forest. It is even suggested "aux arcs" is an abbreviation of "aux arcs-en-ciel", French for "toward the rainbows" which are a common sight in the mountainous regions. After the Louisiana Purchase, American travelers in the region referred to various features of the upland areas using the term "Ozark", such as "Ozark Mountains" and "Ozark forests." By the early 20th century, "The Ozarks" had become a generic term. |source|

How I came to love the bailout

The House Committee on Financial Services has posted links to the Emergency Economic Stabilization Act of 2008. The entire document is 451 pages (pdf) but there's a six page summary as well.

Why are mommy and daddy fighting?

As of this morning, I no longer get NBC programming on my cable box. And neither do a few hundred thousand other Austin customers of Time Warner Cable. Apparently, the corporation who owns the local affiliate is engaged in brinkmanship with Time Warner over their long term contract. It's sad, really.

Sad, because neither can win. Even if they reach an agreement, and KXAN extracts a few extra million dollars from the TWC, both business models are headed for the landfills of history. And these antics are pushing a bunch of us to Hulu, iTunes, or worse, the 'rents. Or even worse, farther away from television altogether, accelerating their demise.

Old music Friday

I'll be heading to the used record store after work, but I'm not sure what to shop for. Last time I was in I passed on some Sonny Rollins records in favor of Nat King Cole, so that's one option. And, given today's news I guess I should consider looking into the Kingston Trio. What do y'all think?

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.

Freud's debate reaction thread (don't mistake for the actual thread, found below)

Just to intellectualize things, I've got a question for the peanut gallery. For me, grief is embodied as a burning sensation in the nose whereas a broken heart is embodied as emptiness in the torso. I don't really understand why it works that way, but it seems to. Any thoughts?

Debate reactions thread

I'm not sure what to think. Palin didn't fuck up, so I'm pretty sure that the talking heads will count that as a victory. On the other hand, I think Biden exuded competence and had the advantage on most of the issues. Also, I thought his answer near the end, where Biden talked about losing his wife and daughter and then nearly broke down it talking about Palin's child, was the most emotionally resonant moment of the night. I know I had trouble holding back tears.

On the whole, I'd say that the debate was a complete surprise. We all expected Palin to tank and she didn't. On the other hand, I don't think anyone expected that impressive a performance from Biden.

...if I had to guess, I'd say that McCain-Palin will see a bounce. She did well enough to reassure voters who were looking for an excuse to vote against Obama.

...I just want to add something about that moment where Biden almost lost it. That really resonates with me, because every now and then I get into situations where I have to talk about my niece (who died suddenly several years ago) and I almost always confront a moment where I very nearly lose it. In those moments, I very rarely trust the person I'm talking to enough to be comfortable talking about my feelings, and...well...I can't really articulate it, but I felt a very close connection to Biden.

...adding, I don't know that I'm ever objective, but I'm certainly incapable of objectivity after that answer. Intellectually, I know that most people experience loss in their lives. Non-intellectually, I don't see how anyone who has experienced loss can have gotten past that moment without a reaction like mine.

...I mean, it's an hour later, and I'm still coping with the emotions that brought up. I don't think you can underestimate the impact.

Not such a pleasant peninsula after all

McCain gives up on Michigan. I'm not sure what to think. The latest polls show McCain tied in Michigan. Either it's a stunt, or McCain is running out of money. Personally, I'd bet on stunt. McCain never had a ground game, so this really amounts to not running ads. But most of the ads I see are from the RNC or from 527s, so it's not even clear that McCain pulling out changes things much.

Incidentally, I'll bet green dollars that the McCain campaign spends the next month swimming in the gutter.

In other news, Palin today answered four questions from the traveling press. That brings the total number of answers given to the traveling press up to four. Continuing TheBellman's commitment to providing primary sources, here's the transcript. She said she doesn't support the bailout in its current form. Maybe that's news.

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.

Still not convinced on the bailout

Many of us are still not convinced. I trust the instincts of Kevin Drum and Paul Krugman, but I also trust the instincts of Russ Feingold. And when Feingold agrees with the two Republican senators from Kansas, it gives me pause.

I understand how the credit market freezing would be bad, I think. What I don't get is why that freezing would be permanent. That is, if the bill passing today would keep credit from freezing up, would the same bill passed in two months--after the chill has really set in--would the bill really fail to unfreeze the market?

I guess I'm still wondering... what's the rush?

Official VP debate prediction thread

Item: There will be a rocking debate watching thread over at the OG.

Item: Palin's strategy will be to attack viciously, and it will work reasonably well. Her ignorance of basic facts about the culture, politics, and history of the lower 48 is no barrier as long as she's part of a campaign and a political party that has no respect for truth.

Item: Biden will call her on it when she lies, and will therefore be declared the loser of the debate.

Item: Rest assured, this is the last time Palin will appear in public without a script:

"We're going to be continue to put her in settings where she has an opportunity to shine, to be on offense," the adviser said. "We've gotten very good feedback from the public from Hugh Hewitt interview."

The adviser suggested that the campaign's efforts at damage control after Palin's interview with Couric may have been hampered by the fact that the governor wasn't doing more friendly interviews to counter her flubs on Russia and the congressional bailout bill, which have reverberated throughout the blogosphere and even turned Palin into a punch line on "Saturday Night Live." |CNN|

Stunt: After Biden calls Palin a liar, McCain will jump up onto the stage and deck him.

Speaking of secrecy

Remember Palin's hacked Yahoo mail account? And her unhacked Yahoo mail account? Small potatoes.

It also raises more questions about Palin's record of commingling the official and personal. The Yahoo inbox posted on the Internet contained family photos, notes from well-wishers and official state correspondence on pending legislation. "She had a number of personal addresses," said John Bitney, a former close aide who was fired by Palin. "I don't know why so many."

ITS technician Ryan Gattis described working with Bailey this spring to set up e-mail addresses linked to the dormant campaign Web site. Gattis said there appeared to be 10 to 15 addresses, chiefly the small circle of aides known in Alaska political circles as "Palinistas" for their fierce loyalty to Palin, with Bailey taking system administrator authority.

"They just wanted an e-mail system that they had control over," Gattis said. He said Bailey also inquired about options for encrypting e-mails but was discouraged by the $1,000 price tag of a commercial encryption product the technician recommended. |WaPo|

In case you were wondering, yes, the first dude is a Palinista.

Alaska has pretty strong open records law, so under normal circumstances the governor's email might be the sort of thing you could FOIA. That is, it would seem to fit the definition of a public record.

(6) "record" means any document, paper, book, letter, drawing, map, plat, photo, photographic file, motion picture film, microfilm, microphotograph, exhibit, magnetic or paper tape, punched card, electronic record, or other document of any other material, regardless of physical form or characteristic, developed or received under law or in connection with the transaction of official business and preserved or appropriate for preservation by an agency or a political subdivision, as evidence of the organization, function, policies, decisions, procedures, operations, or other activities of the state or political subdivision or because of the informational value in them; the term does not include library and museum material developed or acquired and preserved solely for reference, historical, or exhibition purposes, extra copies of documents preserved solely for convenience of reference, or stocks of publications and processed documents; |AS 40.21.150|

Naturally, the spin is that Palin was being extra careful to keep personal and private separate. So the idea is that these emails would be purely personal -- having to do, say, with fundraising. Fair enough. I don't want to pry, and will have no objections once an officer of the court has reviewed the emails in camera and found them to be purely personal.

Troopergate report may not be released to public

News to me, but apparently the Legislative Council, when they get Branchflower's report on October 10, will vote on whether or not to make the report public. Since I wouldn't begin to know how to count noses in the Alaska legislature, I don't really have any idea how that will go. Anyway, Mudflats has more detail and is promoting a letter writing campaign to demand that the report be released to the public.

Palin Couric again

Yesterday's edition. I have to say that with the exception of the newspaper gaffe, Palin was fine. I mean, I thought she was horrible, but she and I are on opposite sides of the political spectrum. She didn't seem stupid (except for the newspaper gaffe), and that's something.

...I forgot to make my point. Here's the thing. If Palin were someone that people thought well of, or even had an open mind about, then the newspaper response would have been ignored. It's one weak answer in an interview where she has some wrong answers and some pretty good answers. That we're all piling on as a result of that interview shows something. Like Dukakis before her, Palin has passed a threshold and it's no longer for her to do anything without being ridiculed for it. This was also what started me off in this post yesterday. It's a bad place to be, and I'd feel sorry for Palin were it not for two facts. First, the the Republican slime machine has been doing this to Democrats deliberately for years. Second, this was all her own doing -- she didn't have to accept nomination for a job she can't do.

...just saw the Supereme Court clip, and it's not nearly as bad as advertised. The question Couric asked wasn't, as has been widely reported, can you name a Supreme Court case. Rather, it was can you name a case you disagree with. I'd still expect a winger to be ready with Kelo, but it isn't nearly the gaffe that it's been made out to be. I mean, I can come back quick (Bakke!), but I'm a fucking geek.

...thought I might add, a lot depends on what you're objecting to. If you think the basic problem is that Palin is prone to bullshit when she doesn't know the answer, well, she looked pretty bad.

...never mind. Now I've watched the CBS branded clip, which pairs Palin's answer with Biden's answer to the same question, and oh. my. God.

News you can use

The beginning of fall semester can be a hard time for cannabis-inclined students. Your dealer graduated last spring. It’s too awkward to call your friend with the hook up after not talking all summer. You moved out of the dorms and left the guy with the conspicuously smelling room behind.

But there are also regular market forces that regulate Ann Arbor’s weed supply in terms of how much it costs, how good it is and how soon you can get it.

September is a low point for finding weed, according to several buyers and sellers of weed on campus. But these experts also assure that any shortage should be relieved by the end of October.

Weed market watchers said growers in Northern Michigan and the rural Midwest will harvest their crop right before the first frost to give buds time to get as big as possible.

“The college market is really super sensitive,” said A, an LSA junior and daily smoker. “I think part of it is the harvest — before the harvest comes in it gets pretty dry.” |Michigan Daily|

The clowns, they have been sent in

JJ sent this on, assuming I'd seen it. Nope. As thanks, here's a link to an activist knitting blog which I'm sure JJ will enjoy.



Let's break it down.

Attack: Monegan engaged in insubordination over budget issues.
Truth: The nub of the charge is that Monegan took an unauthorized trip to Washington D.C. to lobby for funds. In fact, Monegan's travel was authorized by Palin's own chief of staff.

Attack: Hollis French moved the investigation deadline to the middle of the campaign season, promising an October surprise.
Truth: The original end date for the investigation -- which had been set long before Palin was nominated -- had been October 31. After Palin was nominated, French was interviewed by Anderson Cooper, and French questioned the pick, saying that the investigation could give the McCain campaign an October surprise. Subsequently, French advanced the date to October 10 so that Branchflower's report would not be released so close to the election that the McCain/Palin campaign would have no public opportunity for rebuttal.

Attack: Kim Elton refuses calls from his own committee to reconsider the investigation.
Truth: Elton initially said that he believed that reconvening the committee would only politicize the investigation further, but later offered to reconvene if all members could attend. They can't. The underlying truth of the charge is that there is less support for the investigation now than there was at the beginning, when the Legislative Council voted unanimously to establish an independent investigation. The opposition claims that they are motivated by concern to avoid a witch hunt, but it is noteworthy that opposition only emerged once Palin was nominated, which also happens to be when the cover-up effort shifted into high gear.

Attack: Branchflower and French colluded on the issuing of subpoenas.
Truth: French is managing the investigation, and Branchflower must go through him to issue subpoenas. The supposed collusion comes from the fact that Branchflower wanted to issue more subpoenas than French was willing to authorize. (link later)

Attack: Conspiracy theorists say that Monegan was fired because he wouldn't fire Wooten, even after Wooten tasered his ten year old son.
Truth: The sad truth is that the attack demonstrates the credibility of the charge. Wooten was investigated and disciplined for the tasering incident. It would have been illegal for Monegan to discipline him further. And yet, Palin continues to argue that Monegan should have taken further action. In light of that, you don't have to be a nut to believe that Palin conspired with her husband and staff to pressure Monegan to fire Wooten.