For Alaskans who have been enjoying the blood sport that Sarah Palin's weaving and bobbing to avoid accountability in the Troopergate investigation has generated, last week there were two noteworthy new developments.
As America now knows, Troopergate is the local Alaska name for the investigation that the Alaska Legislature (by a unanimous vote of both Republicans and Democrats) directed the Judiciary Committee of the Alaska Senate to initiate to find out whether Sarah andÂ theÂ Palinistas who work for her in the Governor's Office tried (unsuccessfully as it turned out) to pressure Walt Monegan, the Commissioner of the Alaska Department of Public Safety, to violate civil service laws and the State's contract with the State Troopers' union by firing Trooper Mike Wooten, Sarah's ex-brother-in-law. Alaska Governor Palin welcomed the Troopergate investigation. Republican Vice Presidential Candidate Palin now wants nothing to do with it.
To try to weasel out of cooperating, Republican Vice Presidential Candidate Palin instructedÂ Talis Colberg, Alaska Governor Palin'sÂ attorney general, to have the Alaska Department of Law hire a journeyman Anchorage attorney named Tom Van FleinÂ to try to discredit the Troopergate investigation. For the past two weeks Van Flein's legal strategy - if you can call it a legal strategy - has been two-pronged. The first prong has been to try to publicly trash the professional reputations of Hollis French, the chairman of the Senate Judiciary Committee, and Steve Branchflower, the attorney the Committee hired to interview witnesses, gatherÂ documents, and then piece together the Troopergate story. The second prong has been to try to impede the investigation by encouraging the witnesses Branchflower needs to interview to refuse to cooperate.
Unfortunately for Van Flein, inside the Alaska Legislature, Hollis French, who is aÂ thoroughly decent guy and was a prosecutor himself before he was elected to the Alaska Senate, is liked and respected. Steve Branchflower, a veteran of the Anchorage District Attorney's Office is a seasoned and perseverant former prosecutor. And, most importantly, despite the arm-twisting (or worse) to which he has been subjected by the McCain presidential campaign, Charlie Huggins, a conservative Republican who represents Wasilla, Sarah Palin's hometown, in the Alaska Senate, and who is the swing vote on the Senate Judiciary Committee, has continued to stand with Hollis. As a consequence, rather than shutting down the Troopergate investigation, Van Flein's absolutely shameful performance has accelerated it.
Which brings me to the first new development: the decision by the McCain presidential campaign to fly a New York City attorney named Edward O'Callaghan into Anchorage to elbow Tom Van Flein aside and assume command of Sarah Palin's effort to run out the clock on the Troopergate investigation until after the November election.
The website of the New York State Bar Association lists O'Callaghan as an employee of the Office of the U.S. Attorney for the Southern District of New York. But the end of July he resigned and moved to the McCain presidential campaign. When O'Callaghan appeared last week at an Anchorage news conference Michael Isikoff of Newsweek Magazine reported: "O'Callaghan told Newsweek that he and another McCain campaign lawyer (whom he declined to identify) are serving as legal â€˜consultants' to Thomas Van Flein, the Anchorage lawyer who at state expense is representing Palin and her office in the [Troopergate] inquiry. â€˜We are advising Thomas Van Flein on this matter to the extent that it impacts on the national campaign,' O'Callaghan said. â€˜I'm helping out on legal strategy.'"
I am impressed by that candor. But, for O'Callaghan, describing so brazenly what John McCain sent him to Anchorage to do here creates a not so minor problem because Edward O'Callaghan is not a member of the Alaska Bar. I just checked. I am. He's not.
The pickle O'Callaghan's wagging tongue has gotten its owner into is that, pursuant to Alaska Statute 8.08.230, a person who is not a member of the Alaska Bar who while physically present in Alaska "engages in the practice of law" is guilty of a class A misdemeanor. And in Alaska the "practice of law" includes "rendering legal consultation or advice".
So Edward O'Callaghan is a self-confessed miscreant. It would be interesting to know what John McCain thinks about having a criminal serving on his legal team. It alsoÂ would be interesting to know whether Talis Colberg, Sarah Palin'sÂ attorney general, intends to prosecute O'Callaghan. And if he doesn't, why not?
Which brings me to the second new development: Talis Colberg.
Alaska is one of only five states in which the governor appoints the attorney general. In almost all of the other states the attorney general is elected the way Jerry Brown and Andrew Cuomo were elected in California and New York.
In 1956 when the delegates to the Alaska Constitutional Convention wrote the Alaska Constitution a delegate named Frank Barr, a Fairbanks bush pilot, offered an amendment to make the attorney general an elected office. During debate on his amendment Barr argued that: "Many times the governor might ask the attorney general to interpret the law to be sure that he is on the right round when the governor proposes something. In case we had a governor who wanted to bulldoze something through anyhow, if it were a little bit questionable, the attorney general might feel he was obligated to the governor if he were appointed and his opinion might be biased a little bit." Barr also pointed out that "if the attorney general were entirely honest and tried to render an impartial decision, I'm afraid his conscience would hurt him a little bit because he was obligated to the governor and went against the governor's wishes, so to remove the attorney general from that embarrassing position, I think that he should be elected."
The delegates rejected Frank Barr's amendment by the lopsided vote of 12 to 40. But if ever there has been an attorney general whose performance in office has proved Frank Barr right it is Talis Colberg.
Prior to being plucked from obscurity by Sarah Palin, Talis Colberg was a home grown Mat-Su Valley homeboy who practiced workers compensation law by himself out of a small office in downtown Palmer, a farm town (of sorts)Â down the road from Wasilla. When news of his nomination reached Anchorage, to the man and woman, I and every other lawyer of my acquaintance said, "Talis who?" No one, and I mean no one (other than the few attorneys who practice in Wasilla), had ever heard of the fellow.
Talis Colberg was so obviously unqualified to be attorney general that a number of members of the Alaska Legislature, including many Republicans many of whom were in leadership positions, threatened not to confirm him. But, in the end, they reluctantly agreed to give Sarah her guy.
Since then I have met Talis Colberg twice. The second time was a week or so ago on the street in Anchorage. The first time was in January 2007 in Juneau, the state capitol, when I was invited to the Alaska Department of Law to explain the current state of play regarding Indian law issues in Alaska to the new attorney general. During the hour and a half during which I and an attorney friend of mine who worked for the Legislature tried to take Attorney General Colberg through the issues as we saw them, he did not ask a single question. Not one. Instead, he just stared at us with a smile as oddly beatific as Chauncey Gardiner's. My friend and I departed the meeting absolutely bewildered that an attorney general would have zero intellectual interest in or curiosity about important legal issues that it was the attorney general's job to know about. But over the past year and a half I've learned from others that mine was a typical Talis Colberg meeting.
During his confirmation hearing, the members of the House Judiciary Committee questioned Talis quite hard to try to determine who, if he became attorney general, he thought his client would be. The people of Alaska? Or Sarah Palin? I was not there to hear it. But I am told by people who were that Talis's answer was a confused muddle.
But it's a confused muddle that, for Talis Colberg and potentially for Sarah Palin, has now turned out to have significantly adverse consequences.
When Hollis French and other members of the Senate Judiciary Committee lost patience with the stonewall of the Troopergate investigation that Talis Colberg had put Tom Van Flein on the Alaska Department of Law's payroll to orchestrate, on September 12 a majority of the members voted to subpoena thirteen individuals. AsÂ mentioned, conservative Republican Charlie Huggins cast the deciding vote; which puts the lie to Van Flein and O'Callaghan's repeated bald assertions that the Troopergate investigation is a partisan Democratic witch hunt.
One of the individuals who was subpoenaed was Todd Palin. But most of the others were state employees. It also is important to know that, pursuant to Alaska Statute 24.25.080, an individual who refuses to comply with a legislative subpoena can be finedÂ up to $500 and jailed for up to six months.
So how did Attorney General Colberg, the chief law enforcement officer of the State of Alaska, respond to the subpoenas?
In a letter to Hollis French dated September 16 Talis first noted that the state employees who had been subpoenaed (who he characterized as his "clients") were in an "untenable position" because "the Governor [i.e., Sarah Palin] has so strongly stated that the subpoenas issued by your committee are of questionable validity." He then asked Hollis to withdraw the subpoenas and thereby "relieve" his "clients" from "the circumstance of having to choose where their loyalties lie." He then concluded by announcing that if the subpoenas were not withdrawn "our clients will not appear in response to the subpoenas until either the Alaska Senate or the full Alaska Legislature convenes to issue a resolution requiring their presence before the appropriate legislative committee."
It would be interesting to know the extent to which Edward O'Callaghan and Tom Van Flein (who has now left the employ of the Alaska Department of Law to serve as Sarah and Todd Palin's personal attorney for the duration of the Troopergate investigation) participated in writing Talis's letter. It also is interesting that, after he signed it, Talis is reported to haveÂ flown into hiding somewhere in the mid-west. Since his departure the Anchorage attorney rumor mill tom-toms have been pounding out the speculation that, in so deep over his head that he's drowning, Attorney General Colberg may soon resign from his ill-fated experiment with public service.
But if Talis Colberg does not resign, he should be impeached. And the board of governors of the Alaska Bar Association should censure him or worse.
As the chief law enforcement officer of the State of Alaska, Attorney General Colberg has a duty to advise state employees to comply with the law. If in his letter Attorney General Colberg had informed the chairman of the Senate Judiciary Committee that after having carefully studied the doctrine of separation of powers that the Alaska Supreme Court has determined is an implicit part of the Alaska Constitution, the Legislative Council action that granted the Judiciary Committee jurisdiction to conduct the Troopergate investigation, and the procedure the Committee employed that resulted in the issuance of the subpoenas he had concluded that, as a matter of law, the subpoenas were invalid, and he had then explained the legal reasoning he had employed to reach that conclusion, I would have no complaint, even if I disagreed with that legal reasoning.
But in his letter Attorney General Colberg offered no rationale, much less a legal rationale, for his decision to direct state employees not to comply with subpoenas lawfully issued other than to say thatÂ Governor Palin has "strongly stated that the subpoenas issued by your committee are of questionable validity."
In the puffery that has morphed into outright lying about Sarah Palin's qualifications to be the Vice President of the United States even the McCain campaign has not suggested that Alaska's governor-girl is an attorney. So what qualifications does an ersatz hockey mom and former small town mayor bring to the task of evaluating the legal validity of subpoenas that have been issued by a committee of the Alaska Legislature?
Sarah obviously has no such qualifications. But she's not supposed to. Because evaluating the legal validity of subpoenas is the attorney general's job, not the governor's.
But rather than doing his job, insofar as the Troopergate investigation is concerned Talis Colberg has abdicated his office, first to Tom Van Flein, and now to Edward O'Callaghan. Simply put, when Sarah Palin selected him Talis Colberg was professionally unqualified to be the attorney general of Alaska. And he's demonstrated by his conduct as a shill for the McCain campaign that he's also ethically unfit to serve.
Donald Craig Mitchell is an attorney in Anchorage, Alaska. FromÂ 1977 to 1993, Mitchell was in Washington, D.C., working asÂ then-vice-president,Â then-general counsel of the Alaska Federation of Natives. Mitchell is the author of Sold American: The Story of Alaska Natives and Their Land and Take My Land Take My Life: The Story ofÂ Congress's Historic Settlement of Alaska Native Land Claims, which in 2006 the Alaska Historical Society recognized as two of the most important books ever written about the history of Alaska.