Attorney Peter Maassen, representing Alaska’s Legislative Council, defended the investigation in a 17-page court filing in response to last week’s lawsuit by five Republican lawmakers trying to stop the probe into whether Palin improperly fired Public Safety Commissioner Walt Monegan in July.
Monegan has said he was pressured by Gov. Palin, several of her aides, and her husband, Todd Palin, to fire Alaska State Trooper Mike Wooten, who was embroiled 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.
Palin initially welcomed the investigation, which was approved unanimously in July by the state’s Legislative Council, which has a Republican majority. Former federal prosecutor Steven Branchflower was picked to head the probe under the supervision of Sen. Hollis French, a Democrat who chairs the state’s Senate Judiciary Committee.
However, after McCain picked Palin in late August to be his vice presidential running mate, national and state Republicans began suggesting that the investigation was a partisan witch hunt against Palin.
Palin sought to shift the inquiry to the state personnel board whose members are appointed by the governor. Then, last week, five Republican lawmakers sued Branchflower and French as well as the Alaska Legislative Council and its Democratic chair, Sen. Kim Elton.
The Republican lawmakers complained that the Palin investigation was an unconstitutional interference in the hiring-and-firing prerogatives of the governor. They also claimed that Branchflower previously worked with Monegan and thus should be removed.
Maassen – the lawyer representing French, Elton and Branchflower – said the GOP lawmakers’ claims were “meritless” and threatened the concept of legislative oversight of the executive.
“It is hard to find a lawsuit more dangerous” to Alaska’s constitutional checks and balances than “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,” Maassen said.
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,” Maassen added.
In his court motion, Maassen referenced high-profile, historic examples – on the national level – of Congress examining abuses by the Executive Branch.
The lawyer said the notion that the legislature doesn’t have the authority to examine abuses of power by the executive “should come as an unsettling surprise to generations of Americans who have watched congressional hearings into CIA abuse (the Church hearings), Iran-Contra, the U.S. Attorney firings, and countless other executive ‘decisions and actions’ that the people’s elected representatives believed should be investigated, whether or not the executive agreed with them.”
Despite pressure from the McCain-Palin campaign – and the refusal of Todd Palin and some Palin aides to honor subpoenas seeking their depositions – senior Alaskan legislators said Branchflower still intended to finish his report on the controversy by Oct. 10.
There is also the prospect that contempt proceedings could be initiated against Palin’s husband and Palin’s aides early next year when the Alaska legislature returns to session.
The McCain-Palin campaign’s attacks on the investigation have prompted other protests in Alaska, including a request to the state police from state Rep. Les Gara, a Democrat, for an investigation into possible witness tampering by people associated with the McCain-Palin campaign.
"Starting after Aug. 29, certain staff for the McCain campaign came to Alaska in an effort to block this investigation," Gara wrote in a letter to Audie Holloway, director of the Alaska state troopers.
"There are rumors that upwards of 30 staffers have come to the state since that date," Gara said. "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 ...
"Something has caused, or in the words of the statute, may have ‘induced’ these witnesses to change their position. ... It seems a witness would not risk possible jail time that comes with the violations of a subpoena without advice of others."
The five Republican lawmakers, who filed suit to stop the Palin investigation, argue that the legislative inquiry should be put on hold until after the November presidential election and at that point be taken up by the state’s personnel board.
Their attorney, Kevin Clarkson, said "the only reason to complete this investigation before Nov. 4 is to try to impact the outcome of the election."
Doug Pope, an attorney who pursued a similar case three decades ago, predicted that the courts would not intervene to block the investigation.
"If there's an issue about who should be in charge, the court's not going to get involved,” said Pope in an interview with Reuters. “It's a political question. It's not a legal question."
Pope said the legislature has the inherent right to probe the executive branch at any time. He called the argument that the Alaska legislature lacks authority "a red herring."
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This story was published on September 26, 2008.