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Palin may be smiling now, but she's not in the clear. She could be impeached.

Tony Hopfinger

Friday morning at the Alaska Legislature's office building in Anchorage retired prosecutor Steve Branchflower delivered his Troopergate report. Troopergate is the local Alaska name for the investigation that the members of the Legislative Council, which runs the Legislature during its off-season, voted unanimously (Republicans and Democrats alike) to direct my friend Hollis French, the chairman of the Judiciary Committee of the Alaska Senate, to hire Branchflower to conduct. The allegation the Legislative Council directed Branchflower to investigate is that Sarah fired Walt Monegan, her Commissioner of Public Safety, because, despite having been leaned on hard and repeatedly by Sarah and her people, Walt would not violate the Alaska State Personnel Act and fire Sarah's ex-brother-in-law, Michael Wooten, from his job as an Alaska State Trooper.

Sarah first agreed to cooperate with the Troopergate investigation. Then when John McCain selected her as his running mate, she began stone-walling in order to try to run out the clock until after the election.

The principal means to that end was for Sarah to direct Talis Colberg, her boy attorney general, to sue the Legislative Council to try to quash subpoenas that the Judiciary Committee had issued to Todd Palin and seven members of Sarah's staff. Then attorneys from Liberty Legal Institute, a Texas-based "public interest" law firm that takes its direction from James Dobson and his evangelical Focus on the Family organization, flew into Anchorage to sue the Legislative Council on behalf of five Republican members of the Alaska Legislature to try to obtain a court order prohibiting Branchflower from delivering his report.

On Oct. 2, Alaska Superior Court Judge Peter Michalski dismissed both lawsuits in a written decision that not only was a defeat, but, for the attorneys who had filed the cases, a public humiliation. At that point Talis Colberg had the presence of mind to fold Sarah's cards and slink back into the inconsequentiality that has been the hallmark of his embarrassing tenure as Alaska's chief legal officer. But the Liberty Legal Institute appealed Judge Michalski's decision to the Alaska Supreme Court. Last Wednesday the Court heard oral argument on the appeal. The next day, by a unanimous vote, the Court gave the Liberty Legal Institute the back of its hand, thereby clearing the way for Branchflower to deliver his two-volume report.

When they received it, the members of the Legislative Council evicted the reporters and cameramen who had crowded themselves into the Council's meeting room and went into executive session. Several hours later they emerged and by a unanimous vote (eight Republicans, four Democrats) voted to release the first volume of the Troopergate report to the public.

On July 28, 2008 when it authorized the Troopergate investigation, the Legislative Council directed Steve Branchflower to "investigate the circumstances and events surrounding the termination of former Public Safety Commissioner Monegan and potential abuses of power and/or improper actions by members of the executive branch."

There are two problems with that charge. For the past month the McCain-Palin campaign attempted at every turn to spin the first problem to its advantage by disparaging the Troopergate investigation as a partisan witch hunt that the Democratic members of the Legislative Council somehow managed to create on their own for no reason other than to politically embarrass America's favorite hockey mom. With her usual cheerful mendacity, yesterday Sarah tried to take advantage of the second problem by doing her own spinning to try to blunt the political impact of Steve Branchflower's findings regarding her conduct in office by dismissing her misbehavior as inconsequential.

The first problem with the charge is that Article III, Section 25, of the Alaska Constitution provides that the head of each department of the executive branch of the government of the State of Alaska "shall serve at the pleasure of the governor." That means that Governor Palin had the constitutional authority to fire Walt Monegan for a good reason, a bad reason, an unlawful reason, or no reason. And what that reason was is no business of the Alaska Legislature's. Nevertheless, in his report Steve Branchflower informed the Legislative Council (and the public) 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."

The second problem with that charge is that investigating "potential abuses of power and/or improper actions by members of the executive branch" makes no mention of the Alaska Legislature's constitutional responsibility that underpins the Troopergate investigation.

Article III, Section 16, of the Alaska Constitution imposes a nondiscretionary duty on Governor Palin to "be responsible for the faithful execution of the laws." And Article II, Section 20, of the Alaska Constitution states: "All civil officers of the State are subject to impeachment by the legislature."

Unlike Article II, Section 4, of the United States Constitution, which empowers Congress to remove "The President, Vice President and all Civil Officers of the United States" from office by impeachment on the grounds of "Treason, Bribery, or other High Crimes and Misdemeanors," Article II, Section 20, of the Alaska Constitution does not identify the grounds for impeachment. Instead, the delegates to the Alaska Constitutional Convention intended the Alaska Legislature to decide the grounds.

To that end, the Legislature has enacted statutes which establish that the grounds for the impeachment of Alaska Supreme Court Justices and Superior Court Judges are "malfeasance or misfeasance in the performance of official duties." Although the Legislature has not enacted a statute that establishes the grounds for the impeachment of the Governor, in 1985 the Alaska Senate held hearings on a motion to recommend to the Alaska House of Representatives that it hold a trial to impeach Alaska Governor Bill Sheffield because he allegedly had violated a State procurement statute in order to steer a State office lease to a political supporter. At the conclusion of the hearings, the Senate determined that there was "no clear and convincing evidence" that Governor Sheffield had violated the statute. However, if the facts had been that Governor Sheffield had violated the statute, he would have committed "malfeasance in the performance of official duties" and he would have been impeached.

All of which is a lawyer's way of saying that if Governor Palin or any other Alaska Governor commits "malfeasance in the performance of her or his official duties" by intentionally violating a statute, or intentionally encouraging others to do so, like the justices of the Alaska Supreme Court, she or he should be impeached.

Whether "the circumstances and events surrounding the termination of former Public Safety Commissioner Monegan" indicate that Governor Palin committed "malfeasance in the performance of her official duties" and therefore should be impeached was the true subject of the Troopergate investigation. But that extremely important point was obfuscated in the Legislative Council's description of the investigation. As a consequence, Steve Branchflower makes no mention in his report that the delegates to the Alaska Constitutional Convention intended the penalty for a Governor who knowingly refuses to "faithfully execute the laws" to be impeachment.

Instead, his report concludes that Governor Palin violated the Executive Branch Ethics Act because the "evidence supports the conclusion that Governor Palin, at the least, engaged in ‘official action' by her inaction if not her active participation or assistance to her husband in attempting to get Trooper Wooten fired [and there is evidence of her active participation]. She knowingly permitted Todd Palin to use the Governor's office and the resources of the Governor's office, including access to state employees, to continue to contact subordinate state employees in an effort to find some way to get Trooper Wooten fired . . . Governor Palin knowingly permitted a situation to continue where impermissible pressure was placed on several subordinates in order to advance a personal agenda, to wit: to get Trooper Michael Wooten fired. She had the authority and power to require Mr. Palin to cease contacting subordinates, but she failed to act."

On Saturday during a teleconference with Alaska reporters, the Troopergate report's focus on a seemingly technical violation of the Executive Branch Ethics Act gave Sarah the opening she needed to try to deflect the political impact of Branchflower's conclusion by lying her way out of it. Her voice brimming with its usual ersatz certitude, Sarah told her home state reporters that "I'm very, very pleased to be cleared of any legal wrongdoing . . . Todd did what anyone would have done given this state trooper's very, very troubling behavior and his dangerous threats against our family. So again, nothing to apologize there with Todd's actions and again very pleased to be cleared of any legal wrongdoing."

Maybe, as McCain-Palin campaign hopes, Saturday's press teleconference was the end of it because a national press corps too incurious to care whether Sara has any idea who Bill Ayers is will also give her a pass on Troopergate. And maybe the Alaska Senate (which is dominated by Republicans, most of whom have no more use for Sarah than most of the Democrats now do, but who are loyal members of their national party) will give her the same pass.

That's up to them. But while they're thinking about it they may want to connect the following dots in the Troopergate story that Steve Branchflower did not connect in his report.

Michael Wooten, Sarah's ex-brother-in-law, is a "classified" state employee, which means that he is protected by the Alaska State Personnel Act, Alaska Statute 39.25.010 et seq., the same way federal employees are protected by the federal Civil Service Act. Alaska Statute 39.25.160(f) provides:

Action affecting the employment status of a state
employee . . . , including . . . removal, may not
be taken . . . on the basis of unlawful discrimination
due to . . . change in marital status . . . In
addition, action affecting the employment status of
an employee in the classified service, including
. . . removal, may not be taken . . . for a reason
not related to merit.

And Alaska Statute 39.25.900(a) provides: "A person who willfully violates a provision of this chapter or of the personnel rules adopted under this chapter is guilty of a misdemeanor."

In his Troopergate report Steve Branchflower states that in April 2005 Sarah Palin's father, Chuck Heath, filled a complaint against Michael Wooten, his ex-son-in-law, pursuant to the procedure for doing so set out in the State Personnel Act. After investigating the factual allegations in the complaint, in March 2006 the Alaska Department of Public Safety issued Trooper Wooten a letter of reprimand, which Wooten appealed. The appeal was settled in September 2006, and Wooten continued in his employment. Insofar as the State Personnel Act is concerned, that was the end of the matter.

Sarah Palin was elected Governor of Alaska in November 2006, and took office in December 2006, as did Walt Monegan, who Governor Palin appointed as her Commissioner of Public Safety. On January 4, 2006 Commissioner Monegan was summoned by a member of Governor Palin's staff to Governor Palin's office in Anchorage to meet, not with Governor Palin, but with Todd Palin. Walt Monegan's recollection of the meeting contained in the transcript of his deposition merits the length of the quote:

BRANCHFLOWER: Did he [Todd Palin] leave you with the impression of whether the troopers would be better served if Mr. Wooten was no longer in the employ of the Department of Public Safety?

MONEGAN: That was the impression I got. Basically my impression is that he didn't think Wooten should be a trooper, and said that - about said as much.

BRANCHFLOWER: Did he ever say something - words to the effect, look what kind of guy you have on your force, or something along those lines?

MONEGAN: It was something to that effect. And also, during the entire conversation, there wasn't any other issues of other people. The sole meeting - the sole topic at the meeting between Todd and I was strictly about Wooten . . . On the drive back [to my office], as I was reflecting on the meeting, I was thinking that in essence, they certainly didn't like the idea that Wooten was still employed. And they wanted severe discipline, probably termination, and that if this was going to build, I had this kind of ominous feeling that I may not be long for this job if I didn't somehow respond accordingly.

BRANCHFLOWER: So your career you thought might be in jeopardy unless you took some decisive action that might result in Trooper Wooten's dismissal from the force?

MONEGAN: Yes. But the flip side of it, I also got to augment with that that having been a police officer, I certainly believe in rules and regulations and laws and whatnot. And there is a certain part that you will not step over. So I felt that if there is a term where you start to feel the pressure, you are between laws and self-preservation, so to speak.

Several days after their meeting Walt Monegan called Todd Palin to tell him that he, Monegan, had investigated the "new" evidence of Michael Wooten's misconduct on the job that Palin had given to him during the meeting but that the evidence had turned out to be nothing new at all. According to Monegan, Todd Palin was "upset" by that news.

Several days after that conversation Walt Monegan received a telephone call from Sarah Palin. As related in Monegan's deposition, highlights of that conversation are as follows:

MONEGAN: She [i.e., Sarah Palin] was echoing some of the same frustration that I had already heard from Todd . . . the investigation [of Michael Wooten] and the outcome of the investigation just didn't seem right.

BRANCHFLOWER: Now, was this a call during which you discussed other business, police business, or was the sole topic Michael Wooten?

MONEGAN: The sole topic was Michael Wooten.

BRANCHFLOWER: Did you echo everything that you had told Todd a couple of days before?

MONEGAN: I did.

. . .BRANCHFLOWER: And what was her reaction at hearing all of that?

MONEGAN: I think she kind of said the same thing that Todd did, in regards to that this is just not right. Michael Wooten isn't a trooper that should be wearing a badge, or isn't a trooper that should be examples of what Alaska State Troopers should be. She was frustrated.

BRANCHFLOWER: Did you mention that the discipline had already been imposed on Mr. Wooten during the previous administration following an administrative investigation and that the matter was closed?

MONEGAN: I did. And I think that's when she said something about he only got a slap on the wrist.

. . .

BRANCHFLOWER: Did you tell her that there was no new evidence, and that there was really nothing you could do?

MONEGAN: That's correct, I did.

BRANCHFLOWER: And was she accepting of that? And if so, how did she indicate that?

MONEGAN: She was disappointed. I don't know if she said the word "I'm disappointed," but she certainly sounded that way, and that she was looking for some other outcome. That was what I was intuitively looking at. She was looking for some other outcome other than what already happened.

BRANCHFLOWER: Did she express, as Todd had expressed in his early meeting with you, that this was not the kind of person that should be a trooper, or words to that effect?

MONEGAN: Something to that effect, yes.

BRANCHFLOWER: You described a meeting on January 4th with Mr. Todd Palin, and you've just described the call from Governor Palin, and you've described the telephone conversation that you had with Todd Palin, all three of which were specifically about Michael Wooten?

MONEGAN: That's correct.

BRANCHFLOWER: Now, at the end of this conversation with Governor Palin, who obviously is I think the chief executive of the state and your boss, what did you think your future held with respect to your job as commissioner of public safety?

MONEGAN: Well, I believe that with as much emotion and passion as I heard in both Todd and Sarah on this, that especially since the divorce [of Sarah Palin's sister from Michael Wooten] had, in my mind, occurred like a year or two prior, that if I keep telling them things that are going to frustrate them, I may not be long for the job. I think I may have made a comment like that to my wife.

Then on February 13, 2007 Walt Monegan and Sarah Palin walked through the Capitol Building in Juneau on their way to a meeting:

MONEGAN: So as we were walking down the stairs, the governor mentioned to me, she says, "I'd like to talk to you about Wooten." And I said, "Ma'am, I need you to keep an arm's length on this issue. And if you have further complaints on him, I can deal with Todd on it." And she goes, "That's a better idea."

Several weeks after that when Walt Monegan again was in Juneau, Mike Tibbles, Governor Palin's chief of staff, called Monegan into his office:

MONEGAN: I walked into his office. It was just him and I. We were alone. He closed the doors, and he says, "I understand you have a Trooper Mike Wooten on the force." And I started to explain to him that the investigation on Wooten was completed. It had been done by the last administration. It is all done; there is no issues. We had the case reviewed at the request of Todd, and that this is an issue that is closed. And then I went to say that it is my understanding that should there be any litigation brought on by Trooper Wooten, this conversation is discoverable, and the way I understand state law, having been sued a couple of times, is that we are certainly liable, certainly as state employees, but also could be as individuals if we intentionally break this law [i.e., the State Personnel Act]. So we shouldn't be talking about this. You don't want Wooten to own your house, do you? He goes, "No, I don't." "Then we shouldn't talk about this." So that's how it ended.

Volume 1 of the Troopergate report continues for another 334 pages. But the point has been made. And the point is that from the beginning of her administration Sarah Palin and, with her knowledge and approval, the people around her repeatedly attempted to persuade Commissioner of Public Safety Walt Monegan to commit a criminal misdemeanor by firing Michael Wooten from his job as an Alaska State Trooper in violation of the State Personnel Act. Doing so is "malfeasance in the performance of official duties"  that, adjusted for time and circumstance, is near identical to the alleged "malfeasance in the performance of official duties" that in 1985 almost got Alaska Governor Bill Sheffield impeached.

Whether as a consequence of the Troopergate investigation Alaska Governor Sarah Palin soon will face her own impeachment depends on the extent to which the Republican members of the Alaska Senate believe that their constitutional duty to ensure that every Alaska governor "faithfully executes the laws" trumps party loyalty. As of today, I would rate that a toss-up.

 

Donald Craig Mitchell is an attorney in Anchorage, Alaska. Mitchell is the author of Sold American: The Story of Alaska Natives and Their Land and Take My Land Take My Life: The Story of 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.