Lawyer: 'Serious Damage' to McCain if Palin Probe Report Out Before Election
By Jason Leopold
The Public Record
Thursday, September 25, 2008
An attorney representing Alaska’s Legislative Council said John McCain’s presidential campaign fears a statewide ethics investigation into Gov. Sarah Palin, McCain’s vice presidential running mate, “would cause serious damage to the Republican ticket” if details of the probe were “publicly known before the national election.”
Anchorage attorney Peter Maassen made those comments in a 17-page court filing Wednesday where he asked a judge to dismiss a lawsuit filed last week by five Republican lawmakers who are trying to stop the Palin investigation. Maassen accused the McCain campaign of trying to derail a two-month old investigation to determine whether Gov. Sarah Palin improperly fired Public Safety Commissioner Walt Monegan.
Monegan said he was pressured by Palin, her husband, Todd, and the governor’s aides to fire Alaska State trooper Mike Wooten who was engaged in a bitter divorce and child custody dispute with Palin’s sister. The investigation centers on whether Palin fired Monegan because he refused to fire Wooten.
Five Republican lawmakers last week sued the Alaska Legislative Council, Steven Branchflower, the former federal prosecutor chosen by the state’s legislature to lead the investigation, Sen. Hollis French, a Democrat who chairs the state’s Senate Judiciary Committee, and Sen, Kim Eton, the Democratic chair of the Alaska Legislative Council.
Maassen, who is representing French, Elton, and Branchflower, said in the court filing that the “McCain campaign and its supporters, having apparently convinced themselves that the facts would cause serious damage to the Republican ticket if publicly known before the national election, are now moving on many fronts—including this one—to slow and stop Mr. Branchflower’s fact-finding inquiry and to prevent his issuance of the report authorized by the Legislative Council.”
The Republican lawmakers complained that the probe, unanimously approved in July by the state’s Legislative Council, made up of a majority of Republicans, is unconstitutional. Moreover, the GOP lawmakers claim the investigation, as overseen by French and Elton, has turned into a partisan witch-hunt against Palin. They further claim that Branchflower had previously worked with Monegan, the former official at the center of the inquiry, and should be removed.
In their complaint, GOP Reps. Wes Keller, Mike Kelly, and Bob Lynn, and Senators Fred Dyson and Tom Wagoner, accused Branchflower, French and Elton, of "conducting a McCarthyistic investigation in an unlawful, biased, partial, and partisan political manner in order to impact the upcoming Alaska general and national presidential elections, and they are conducting investigations into matters that the Alaska Constitution entrusts exclusively to the Executive Branch, over which the Legislature has no power to act."
"[We] bring this action in order to put a stop to Defendants' abuse of legislative power, abuse of legislative office, and misuse and misappropriation of legislative funds, facilities, equipment and services for partisan political purposes under the ruse of a so-called independent investigation," the GOP lawmakers' lawsuit says.
Maassen said the GOP lawmakers claims are “meritless.”
“It is hard to find a lawsuit more dangerous than Alaska’s tripartite form of government than the one that asks the courts to instruct the Legislature that there are certain executive actions off-limits to legislative inquiry, certain legislators who are “too partisan” to be assigned responsibility in legislative investigations, and certain people whom the Legislature cannot employ as investigators,” states a copy of the motion to dismiss filed by Maassen. “Fortunately, under Alaska’s separation-of-powers principles and case law the complaint is clearly meritless as a matter of law.”
The attorney said assertions by Palin’s private attorneys and presidential campaign advisers that the state legislature does not have the authority to probe allegations of abuse of power “should come as an unsettling surprise to generations of Americans who have watched congressional hearings into CIA abuse (the Church hearings), Iran-Contra, the US Attorney firings, and countless other executive “decisions and actions” that the people’s elected representative believed should be investigated, whether or not the executive agreed with them.”
Palin was chosen as Sen. John McCain’s Republican vice presidential running mate in late August weeks after she vowed to cooperate with the investigation.
Despite pressure by the McCain-Palin campaign, Alaska state officials vowed last week to finish a report on the controversy by Oct. 10 and to weigh contempt proceedings against Palin’s husband and officials who work for Palin for refusing to comply with subpoenas early next year.
Kevin Clarkson, an attorney representing the lawmakers, said "the only reason to complete this investigation before November 4 is to try to impact the outcome of the election."
The Republican lawmakers allege the Palin probe should be put on hold until after the November presidential election and at that point be taken up by the state’s personnel board made up of Palin appointees.
Maassen said in the court filing that assertions by GOP lawmakers that the state legislature does not have the authority to launch an investigation into the executive branch are “extraordinary” and “ultimately baseless.”
“Essentially, the Complaint asks the court to decide two political questions: (1) that the termination of Commissioner Monegan and related “potential abuses of power/improper action by the executive branch” are subject areas off-limits to the Legislature; and (2) that Senator French and Senator Elton are “too partisan” (i.e. Democrats who openly support their party’s nominees) to be assigned roles in legislative investigations of a Republican executive. The challenged actions of the Legislative Council, however, are purely legislative acts and they are not subject to second-guessing by the judiciary.”
An attorney who pursued a similar case three decades ago predicted the Alaska lawmakers’ lawsuit wouldn’t succeed.
"If there's an issue about who should be in charge, the court's not going to get involved. It's a political question. It's not a legal question," said Doug Pope, who argued unsuccessfully on behalf of a former state House speaker who was ousted in a 1970s legislative coup, in an interview with Reuters last week.
Pope said the legislature has the inherent right to probe the executive branch at any time. The argument that the Alaska legislature lacks authority is "a red herring," he said
The court filing follows comes a day after Democratic state Rep. Les Gara wrote a letter Audie Holloway, the director of the Alaska state troopers, calling for an investigation into possible witness tampering regarding the Palin probe by people working for or close to Sen. John McCain's presidential campaign.
"Starting after August 29, certain staff for the McCain campaign came to Alaska in an effort to block this investigation," Gara wrote in his letter to Holloway. Gara also issued a press release titled "Legislator Asks Troopers to Look at Possible Witness Tampering."
"There are rumors that upwards of 30 staffers have come to the state since that date," Gara added in his letter to Holloway. "I do not know the roles of the various staff members. Campaign representatives Ed O'Callaghan and Meghan Stapleton have held numerous press conferences in Anchorage to block the investigation. Since then three witnesses have failed to comply with legislative subpoenas, and up to seven more may do the same this coming Friday."
"Something has caused, or in the words of the statute, may have "induced" these witnesses to change their position," Gara wrote. "I do not know whether it is advice from staff for the McCain campaign, state counsel, private counsel, or from others, or whether these individuals have done this independently of advice or suggestions from third persons. But it seems a witness would not risk possible jail time that comes with the violations of a subpoena without advice of others."
Last week, a Judiciary Committee hearing was scheduled for witnesses, including Palin's husband, Todd, who were subpoenaed two weeks ago. But none of the six witnesses who received a summons showed up.
French, a Democrat who chairs the Senate Judiciary Committee, sent a letter to Senate President Lyda Green, stating Todd Palin's refusal to respond to the subpoena requires the Alaska Legislature to decide whether to impose fines against the First Spouse or pursue contempt charges, which could lead to Todd Palin's arrest.
French's letter to Green says Palin, and the two state officials, "all having been served with subpoenas through their legal counsel, have neither given statements nor appeared today in compliance with their subpoenas."
"Alaska statute 24.25.030 sets out our procedure in this particular situation," the letter says. The statute says, French wrote, "if a witness neglects or refuses to obey a subpoena...the senate or the house of representatives may by resolution entered on its journal commit the witness for contempt. If contempt is committed before a committee, the committee shall report the contempt to the senate or house of representatives, as the case may be, for such action as may be considered necessary. Please consider this letter as satisfying the dictates of the statute."
However, the senate does not convene until January so any action taken would be well after November's presidential election.
By Jason Leopold
The Public Record
Thursday, September 25, 2008
An attorney representing Alaska’s Legislative Council said John McCain’s presidential campaign fears a statewide ethics investigation into Gov. Sarah Palin, McCain’s vice presidential running mate, “would cause serious damage to the Republican ticket” if details of the probe were “publicly known before the national election.”
Anchorage attorney Peter Maassen made those comments in a 17-page court filing Wednesday where he asked a judge to dismiss a lawsuit filed last week by five Republican lawmakers who are trying to stop the Palin investigation. Maassen accused the McCain campaign of trying to derail a two-month old investigation to determine whether Gov. Sarah Palin improperly fired Public Safety Commissioner Walt Monegan.
Monegan said he was pressured by Palin, her husband, Todd, and the governor’s aides to fire Alaska State trooper Mike Wooten who was engaged in a bitter divorce and child custody dispute with Palin’s sister. The investigation centers on whether Palin fired Monegan because he refused to fire Wooten.
Five Republican lawmakers last week sued the Alaska Legislative Council, Steven Branchflower, the former federal prosecutor chosen by the state’s legislature to lead the investigation, Sen. Hollis French, a Democrat who chairs the state’s Senate Judiciary Committee, and Sen, Kim Eton, the Democratic chair of the Alaska Legislative Council.
Maassen, who is representing French, Elton, and Branchflower, said in the court filing that the “McCain campaign and its supporters, having apparently convinced themselves that the facts would cause serious damage to the Republican ticket if publicly known before the national election, are now moving on many fronts—including this one—to slow and stop Mr. Branchflower’s fact-finding inquiry and to prevent his issuance of the report authorized by the Legislative Council.”
The Republican lawmakers complained that the probe, unanimously approved in July by the state’s Legislative Council, made up of a majority of Republicans, is unconstitutional. Moreover, the GOP lawmakers claim the investigation, as overseen by French and Elton, has turned into a partisan witch-hunt against Palin. They further claim that Branchflower had previously worked with Monegan, the former official at the center of the inquiry, and should be removed.
In their complaint, GOP Reps. Wes Keller, Mike Kelly, and Bob Lynn, and Senators Fred Dyson and Tom Wagoner, accused Branchflower, French and Elton, of "conducting a McCarthyistic investigation in an unlawful, biased, partial, and partisan political manner in order to impact the upcoming Alaska general and national presidential elections, and they are conducting investigations into matters that the Alaska Constitution entrusts exclusively to the Executive Branch, over which the Legislature has no power to act."
"[We] bring this action in order to put a stop to Defendants' abuse of legislative power, abuse of legislative office, and misuse and misappropriation of legislative funds, facilities, equipment and services for partisan political purposes under the ruse of a so-called independent investigation," the GOP lawmakers' lawsuit says.
Maassen said the GOP lawmakers claims are “meritless.”
“It is hard to find a lawsuit more dangerous than Alaska’s tripartite form of government than the one that asks the courts to instruct the Legislature that there are certain executive actions off-limits to legislative inquiry, certain legislators who are “too partisan” to be assigned responsibility in legislative investigations, and certain people whom the Legislature cannot employ as investigators,” states a copy of the motion to dismiss filed by Maassen. “Fortunately, under Alaska’s separation-of-powers principles and case law the complaint is clearly meritless as a matter of law.”
The attorney said assertions by Palin’s private attorneys and presidential campaign advisers that the state legislature does not have the authority to probe allegations of abuse of power “should come as an unsettling surprise to generations of Americans who have watched congressional hearings into CIA abuse (the Church hearings), Iran-Contra, the US Attorney firings, and countless other executive “decisions and actions” that the people’s elected representative believed should be investigated, whether or not the executive agreed with them.”
Palin was chosen as Sen. John McCain’s Republican vice presidential running mate in late August weeks after she vowed to cooperate with the investigation.
Despite pressure by the McCain-Palin campaign, Alaska state officials vowed last week to finish a report on the controversy by Oct. 10 and to weigh contempt proceedings against Palin’s husband and officials who work for Palin for refusing to comply with subpoenas early next year.
Kevin Clarkson, an attorney representing the lawmakers, said "the only reason to complete this investigation before November 4 is to try to impact the outcome of the election."
The Republican lawmakers allege the Palin probe should be put on hold until after the November presidential election and at that point be taken up by the state’s personnel board made up of Palin appointees.
Maassen said in the court filing that assertions by GOP lawmakers that the state legislature does not have the authority to launch an investigation into the executive branch are “extraordinary” and “ultimately baseless.”
“Essentially, the Complaint asks the court to decide two political questions: (1) that the termination of Commissioner Monegan and related “potential abuses of power/improper action by the executive branch” are subject areas off-limits to the Legislature; and (2) that Senator French and Senator Elton are “too partisan” (i.e. Democrats who openly support their party’s nominees) to be assigned roles in legislative investigations of a Republican executive. The challenged actions of the Legislative Council, however, are purely legislative acts and they are not subject to second-guessing by the judiciary.”
An attorney who pursued a similar case three decades ago predicted the Alaska lawmakers’ lawsuit wouldn’t succeed.
"If there's an issue about who should be in charge, the court's not going to get involved. It's a political question. It's not a legal question," said Doug Pope, who argued unsuccessfully on behalf of a former state House speaker who was ousted in a 1970s legislative coup, in an interview with Reuters last week.
Pope said the legislature has the inherent right to probe the executive branch at any time. The argument that the Alaska legislature lacks authority is "a red herring," he said
The court filing follows comes a day after Democratic state Rep. Les Gara wrote a letter Audie Holloway, the director of the Alaska state troopers, calling for an investigation into possible witness tampering regarding the Palin probe by people working for or close to Sen. John McCain's presidential campaign.
"Starting after August 29, certain staff for the McCain campaign came to Alaska in an effort to block this investigation," Gara wrote in his letter to Holloway. Gara also issued a press release titled "Legislator Asks Troopers to Look at Possible Witness Tampering."
"There are rumors that upwards of 30 staffers have come to the state since that date," Gara added in his letter to Holloway. "I do not know the roles of the various staff members. Campaign representatives Ed O'Callaghan and Meghan Stapleton have held numerous press conferences in Anchorage to block the investigation. Since then three witnesses have failed to comply with legislative subpoenas, and up to seven more may do the same this coming Friday."
"Something has caused, or in the words of the statute, may have "induced" these witnesses to change their position," Gara wrote. "I do not know whether it is advice from staff for the McCain campaign, state counsel, private counsel, or from others, or whether these individuals have done this independently of advice or suggestions from third persons. But it seems a witness would not risk possible jail time that comes with the violations of a subpoena without advice of others."
Last week, a Judiciary Committee hearing was scheduled for witnesses, including Palin's husband, Todd, who were subpoenaed two weeks ago. But none of the six witnesses who received a summons showed up.
French, a Democrat who chairs the Senate Judiciary Committee, sent a letter to Senate President Lyda Green, stating Todd Palin's refusal to respond to the subpoena requires the Alaska Legislature to decide whether to impose fines against the First Spouse or pursue contempt charges, which could lead to Todd Palin's arrest.
French's letter to Green says Palin, and the two state officials, "all having been served with subpoenas through their legal counsel, have neither given statements nor appeared today in compliance with their subpoenas."
"Alaska statute 24.25.030 sets out our procedure in this particular situation," the letter says. The statute says, French wrote, "if a witness neglects or refuses to obey a subpoena...the senate or the house of representatives may by resolution entered on its journal commit the witness for contempt. If contempt is committed before a committee, the committee shall report the contempt to the senate or house of representatives, as the case may be, for such action as may be considered necessary. Please consider this letter as satisfying the dictates of the statute."
However, the senate does not convene until January so any action taken would be well after November's presidential election.
