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Friday, October 10, 2008

Branchflower report on Tasergate: Just one guy's opinion that contradicts itself and ignores the relevant facts and law

Give a lawyer a $100k budget and tell him to produce a political hatchet job, and what do you get? The 263-page piece of garbage now on the internet and in the hands of Alaska legislators called "The Branchflower Report." My take on it as the latest bit of political thuggery in Tasergate is now up as a guest-post on HughHewitt.com.


[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar)

Democratic state senator and staunch Barack Obama supporter Hollis French of Alaska boasted in early September that he would provide an "October Surprise" which would upset the McCain-Palin campaign. Indeed, he originally planned to time it for October 31, four days before the election, for maximum impact, until other legislators forced him to abandon that particular strategy.

Today, however, in an episode of political theater that would make Josef Stalin blush, French gave it his very best shot: The investigator he hired and directed, Steve Branchflower, has labored mightily and given birth to a bloated and redundant 263-page report which boils down, for purposes of the ongoing presidential campaign, to two paragraphs that completely contradict one another. And the one of them that's unfavorable ignores the most important — indeed conclusive — evidence on point, but goes on to provide Branchflower's guess as to whether Gov. Palin has done anything improper.

Please understand this, if you take nothing else away from reading this post: The Branchflower Report is a series of guesses and insupportable conclusions drawn by exactly one guy, and it hasn't been approved or adopted or endorsed by so much as a single sub-committee of the Alaska Legislature, much less any kind of commission, court, jury, or other proper adjudicatory body. It contains no new bombshells in terms of factual revelations. Rather, it's just Steve Branchflower's opinion — after being hired and directed by one of Gov. Palin's most vocal opponents and one of Alaska's staunchest Obama supporters — that he thinks Gov. Palin had, at worst, mixed motives for an action that even Branchflower admits she unquestionably had both (a) the complete right to perform and (b) other very good reasons to perform.

Here are the two key "findings," however (from page 8 of the .pdf file; boldface mine):

Finding Number One

For the reasons explained in section IV of this report, I find that Governor Sarah Palin abused her power by violating Alaska Statute 39.52.110(a) of the Alaska Executive Branch Ethics Act. Alaska Statute 39.52.110(a) provides

The legislature reaffirms that each public officer holds office as a public trust, and any effort to benefit a personal or financial interest through official action is a violation of that trust."

Finding Number Two

I find 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 to his termination as Commissioner of Public Safety. In spite of that, Governor Palin's firing of Commissioner Monegan was a proper and lawful exercise of her constitutional and statutory authority to hire and fire executive branch department heads.

Here's a note to Mr. Branchflower, who clearly is verbose, but obviously none too keen a scholar of logic: Gov. Palin's so-called "firing" of Monegan (it wasn't a firing, it was a re-assignment to other government duties that he resigned rather than accept) can't simultaneously be a violation of the Ethics Act and "a proper and lawful exercise of her constitutional and statutory authority." This, gentle readers, is a 263-page piece of political circus that actually explicitly refutes itself on its single most key page!

What's more incredible is that Branchflower utterly ignores the public admission made by Walt Monegan himself that ought to have ended this entire inquiry (boldface mine):

"For the record, no one ever said fire Wooten. Not the governor. Not Todd. Not any of the other staff," Monegan said Friday from Portland. "What they said directly was more along the lines of 'This isn't a person that we would want to be representing our state troopers.'"

That explains, of course, why it took a couple of weeks for Monegan to be persuaded that he'd been improperly "fired" (for supposedly refusing to fire Wooten) by an Alaska blogger, Andrew Halcro — a bitter loser whom Gov. Palin crushed in the 2006 Alaska gubernatorial race (he got less than 10% of the vote, proving that most Alaskans have long since figured out he's an untrustworthy windbag).

Instead, Branchflower has piled a guess (that the Palins wanted Wooten fired, rather than, for example, counseled, disciplined, or reassigned) on top of an inference (that when the Palins expressed concern to Monegan about Wooten, they were really threatening to fire Monegan if he didn't fire Wooten) on top of an innuendo (that Gov. Palin "fired" Monegan at least in part because of his failure to fire Wooten) — from which Branchflower then leaps to a legal conclusion: "abuse of authority." Branchflower reads the Ethics Act to prohibit any governmental action or decision made for justifiable reasons benefiting the State if that action or decision might also make a public official happy for any other reason. That would mean, of course, that governors must never act or decide in a way that makes them personally happy as a citizen, or as a wife or mother or daughter, and that they could only take actions or make decisions which left them feeling neutral or upset. This an incredibly shoddy tower of supposition, and a ridiculous misreading of the law.

Branchflower puts under a microscope every direct and indirect contact that can possibly be claimed to to come, directly or indirectly, from Gov. Palin or her husband, Todd. In none of them did either Sarah or Todd Palin demand or request that Wooten be fired. Some of them date back to before Gov. Palin was even a candidate for governor. All of them are equally well explained by legitimate concerns that Wooten was a potential threat to the Palin family (having already made death threats against Gov. Palin's father) and/or an embarrassment to the Alaska Department of Public Safety and the entire state law enforcement community. That the Palins also had strong — and entirely understandable! — negative feelings about Trooper Wooten does not make any of these communications remotely improper, much less illegal.

Nevertheless, Branchflower leaps to the personal conclusion (page 67 of the .pdf file) that "such claims of fear were not bona fide and were offered to provide cover for the Palins' real motivation: to get Trooper Wooten fired for personal family related reasons." Well, here's another memo to Mr. Branchflower: When the family is question is the family of the Governor of Alaska, and when her security detail is charged with protecting her from threats, and in the process of that, the security detail actively seeks out information as to who may have previously made death threats against the family, that's no longer solely a "personal family related reason." And when someone like Trooper Wooten threatens to bring ridicule and shame to the entire state of Alaska, that's no longer solely a "personal family related reason" either.

Branchflower, I'm told, is an attorney and a former prosecutor. If he thinks this kind of nonsense could support a conviction beyond a reasonable doubt, or even a finding of proof by a preponderance of the evidence, then he may be the worst lawyer I've ever encountered — and I've met a lot of awful ones in almost three decades before the bar.

More likely, however, Branchflower knows that his imaginary case will never be tested before any judge or jury — and instead, Branchflower's audience, and the audience of his political patron Sen. French, is a purely political one. They do not want you to read the 263 pages of his report, but I invite you to do so: By the end of it, you'll be thoroughly convinced that both Wooten and Monegan ought to have been fired! And if you're a person, as I am, who admires husbands and fathers who stand up for their families, you'll definitely want to shake First Dude Todd Palin's hand, and maybe even give him a (manly) bear-hug.

No, indeed, Sen. French and Mr. Branchflower dearly hope most Americans won't look past the headlines generated by this ridiculous farce of a report. French and Branchflower hope that Americans will be misled into thinking this report is from someone whose judgment or opinions actually count for something — instead of being from a hitman hired to complete a political hatchet job, as it actually is.

This report changes absolutely nothing, except that it will be manipulated politically by Obama supporters and Palin haters in an attempt to drive more potential voters into taking sides with Trooper Mike Wooten — a proven child abuser (Tasered his own 10-year-old stepson on a lark) who's been conclusively determined by his own department to have also engaged in drinking and driving in his squad car, and to have used a deadly firearm to violate the very fish-and-game laws he himself was specifically assigned to enforce. "It is nearly certain," wrote Col. Julia Grimes, then then Director of the Alaska State Troopers Division of the Alaska Department of Public Safety, "that a civilian investigated under similar circumstances would have received criminal sanctions." The only real question in Tasergate remains why Trooper Mike Wooten is still not only uncharged for his confessed crimes, but carrying a badge and gun to the continuing shame of the good and decent people of Alaska.


UPDATE (Fri Oct 10 @ 11:25 p.m. CST): Gov. Palin's office and the McCain-Palin campaign have each put out press releases making some of the same points I've made in this post. And Gov. Palin's lawyer has issued a five-page response to the Branchflower report which notes, among other things, that "[e]very prior reported Ethics Act violation involved financial motives and financial 'potential gain, or the avoidance of a potential loss.' ... Here, there is no accusation, no finding and no facts that money or financial gain to the governor was involved in the decision to replace Monegan."

Even the Anchorage Daily News is misrepresenting the meaning of this report: I just received an email update from it in which it claims that "Today Alaska legislators found Palin did abuse her power in the 'Troopergate' controversy." That's absolutely false — the Alaska Legislature is not in session, and all that happened today was that the 12-member Legislative Council that received the Branchflower Report voted unanimously to release its first volume (the 263-page .pdf file linked above) to the public. Several more volumes and hundreds more pages prepared by Branchflower still remain confidential — suggesting that Branchflower's selective quotations in the report may well have been "cherry-picked" or taken out of context — but the governor's office has itself posted quite a few more documents pertaining to the investigation on the internet, confirming Gov. Palin's repeated statements that she has nothing to hide in this entire matter.

— Beldar

Posted by Beldar at 09:57 PM in 2008 Election, Law (2008), Palin, Politics (2008) | Permalink


Other weblog posts, if any, whose authors have linked to Branchflower report on Tasergate: Just one guy's opinion that contradicts itself and ignores the relevant facts and law and sent a trackback ping are listed here:

» Sarah Palin and abuse of power from Mark My Words

Tracked on Oct 11, 2008 2:21:22 PM


Tracked on Oct 11, 2008 9:56:31 AM


(1) Dai Alanye made the following comment | Oct 10, 2008 10:33:42 PM | Permalink

Fox News is loaded with lawyers, yet they've done a weak job of explaining this, presenting the report as if it were the last word.

(2) R Woodson made the following comment | Oct 10, 2008 11:14:25 PM | Permalink

Your rationale, in my opinion, is right on. Though each issue you illuminated is presented as separate issues in Branchflowers 'findings', there is no doubt they end up contradicting each other; his conclusions are premised upon presumption rather than fact, which seems to often be the a major flaw with prosecutors. Excellent analogy.

(3) Mike made the following comment | Oct 11, 2008 1:04:54 AM | Permalink

After reading your piece at Hewitt, I have a question regarding the Troopergate findings. While I agree there's nothing here, does it really matter at this point, how many people will read the entire document, the press will only cover the headline "she abused her power" so were does that leave us in the election. Does this not effectively neturalize McCains attacks on Obama with reagard to Fannie and Fred and the corrution angle? Do they not have another hammer with which to say look at the Republicans they are the corrupt ones? The Ayers,Rezko,Wright etc..does not appear to be working and if yuo ask me it may be hurting us. At this point what do we do? From where I sit this country seems bent on electing Obama and having the spectacle of an Obama,Reid, Pelosi Washington with all the supporting cast as well in Washington a left leaning Gov't that would make Europe blush....

Thank you

(4) Beldar made the following comment | Oct 11, 2008 1:18:48 AM | Permalink

Mike, we each do what we can.

Hugh Hewitt's graciously given me a pulpit that gets something like 625-800k page views each week, and I'm trying to share factual information that the mainstream media misreports or suppresses there, along with my opinions for what those are worth.

We all communicate in different ways, though, and perhaps you'll find a way to influence a few other people too. I hope so. And if anything I've written helps you make a point, or educate someone who's been misled, then so much the better for us both.

But be of good cheer. You can't believe the polls, and the mainstream media is heavily invested in making Obama opponents pessimistic. Be an optimist, just to spite 'em.

(5) fred powers made the following comment | Oct 11, 2008 3:08:21 AM | Permalink

There's one thing I don't understand about your analysis:

Whether Palin had the legal power to fire the commissioner, she can still have acted unethically in pressuring for Wooten's firing. I don't see how the two issues are linked - the statutes are separate.

For example, I might have the full legal power to tell guests to leave my home; but that does excuse, for example, defaming them while they were here.

(6) Emineid made the following comment | Oct 11, 2008 5:33:12 AM | Permalink

The Branchflower report is a self-contradiction. It can't even make up its mind as to whether Gov. Palin broke the law. What is clear to me is that Julia Grimes decided to cave into the union pressure instead of firing that missing link of a goon Mike Wooten. There is nothing "personal" in the motive of Gov. Palin trying to remove a psychopath from the forces. The major media outlets, as usual, have got this one completely wrong, but then, you can't expect those "reporters" to actually do the homework and check the facts. Gov. Palin shows her character and courage by going up against a corrupt police union.

(7) Dai Alanye made the following comment | Oct 11, 2008 11:24:28 AM | Permalink

The critical point with regard to "abuse of power" seems to me to be this: Despite the fact that Sarah Palin transferred her safety director months back, Trooper Wooten still has his job. If Palin's action was designed to avenge herself on Wooten, she has certainly gone about it in an odd--and for her, oddly ineffective--fashion.

The logical conclusion of any rational person should be that her object in taking the safety director's job from Monegan had little if nothing to do with Wooten. Those debilitated by PMS (Palin Madness Syndrome) will, of course, think only in terms of conspiracy and personal pique.

(8) Mike made the following comment | Oct 11, 2008 4:02:42 PM | Permalink

Source Powerline.com: Was Obama associated/member of the New Party in Chicago? Is anybody going to mention this?

October 11, 2008
Barack Obama, Socialist? Part II

We wrote here about Barack Obama's ties to the New Party during the 1990s. The New Party was a far-left organization founded by members of the Democratic Socialists of America and other extremists. It not only endorsed Obama in his 1996 state Senate race, but, when Obama won, wrote that he was an "NP member." To my knowledge, no mainstream reporter or news outlet has asked Obama whether he was, as the New Party wrote, a member of that organization, or whether he subscribed to the New Party's far left--it's fair to say "socialist"--platform.

Some Obama supporters have denied that he was in fact a New Party member, although I don't think Obama himself has commented. Now a New Zealand web site called New Zeal has dug up a wealth of information on the New Party, including a second claim by the New Party that Obama was a member. This is from the Spring 1996 edition of New Party News:
New Party members won three other primaries this Spring in Chicago: Barack Obama (State Senate), Michael Chandler (Democratic Party Committee) and Patricia Martin (Cook County Judiciary)..."these victories prove that small 'd' democracy can work" said Obama.

This photo was on the front page of that issue of New Party News:


The photo's caption can be construed as creating ambiguity about whether Obama was a Party member or only an endorsed candidate:
Winners! NP-endorsed candidates Patricia Martin (far left), Danny Davis (center), and Barack Obama (far right), celebrate with Chicago New Party members Ted Thomas and Ruth Schools after their victories in the Democratic primary last month.

Taken together, the evidence strongly suggests that Barack Obama was a member of the New Party in the 1990s. At a bare minimum, he was endorsed by the New Party, worked with New Party members and attended New Party events. Given the radicalism of the New Party's program, it is hard to understand how any interviewer could fail to ask Obama about his association with the group.

Posted by John at 11:43 AM | Permalink | E-mail this post to a friend | []

(9) SAZMD made the following comment | Oct 11, 2008 11:29:21 PM | Permalink

Not sure if you're interested, but your post is taking a hit at Volokh by a few persistent posters who have nitpicked a few of your comments and seem to not understand the Ethics Act. They also seem very determined to defend Trooper Wooten. Just FYI.

(10) Beldar made the following comment | Oct 12, 2008 12:54:33 AM | Permalink

SAZMD, while there are some who are very astute and well-spoken and civil, there are also some very persistent and nasty commenters who hang out at the VC. I respect some of the actual contributors to that group blog a great deal. But I rarely find it useful to bathe in the excrement thrown out by their nastier commenters there because, as at Townhall.com, there's no effective moderation of commenting being done. And the efforts of the nasty ones to respond, insult, and ridicule always rise to match and then exceed any of mine to engage them civilly. There is no bottom to their energy and depravity, and I feel dirty after trying to engage them.

I did skim the comments there in response to Prof. Adler's post. I'm not going to bother with people like jukeboxgrad who argue that it's actually not such a bad thing to Taser a 10-year-old. A couple of people there make the point that neither Hugh Hewitt or I are nonpartisan pundits, but that's no secret either, and I don't see that it needs to be addressed. That Hugh and I are fans of Gov. Palin and political foes of Sen. Obama doesn't make my quotations from the Branchflower report inaccurate or my arguments invalid — except in the eyes of a hyperpartisan who is uninterested in the substance.

The best of the counter-arguments to my post that I've seen there is essentially the same one made by "fred powers" above (his being a very civil expression of the point), to the effect that Gov. Palin could have committed a breach of the Ethics Act by improperly exerting (or permitting Todd to exert) "pressure" on Monegan even before she reassigned him. Folks who make that argument are trying to take the focus off the re-assignment, and keep it on the communications that preceded it (most of them by many months).

The problem with that argument, in a sentence, is that it leaves them arguing that it's okay for Gov. Palin to fire Monegan, but not okay for her to (supposedly) threaten to fire him. And that's silly.

Merely expressing a view — e.g., "this man may be a security risk" or "this man is a poor example of the Department" — is not a use or even a threatened use of governmental power. Without a use or at least a threatened use of power, there can be no abuse of power.

Likewise, when a use of a power — as here Branchflower concedes was the case with respect to the reassignment to other duties that Monegan refused — is a lawful and proper use of power, it cannot simultaneously be an abuse of power.

Mr. Powers tries an analogy above to my defaming a visitor while ordering them off my property, and says, correctly, that my right to do the latter doesn't immunize me from liability from having done the former. That's true enough. But it ignores the lack of any proof of a use, or threatened use, of power by Gov. Palin other than the reassignment of Monegan. A necessary element for any violation of the Ethics Act is that the questioned action advance a personal interest of the state official. Arguably, firing Monegan (or threatening to fire Monegan) to get a measure of personal revenge against Wooten would be such a personal interest (although there is indeed good reason to be suspicious whenever the personal interest allegedly being pursued is non-monetary). But it's impossible to stretch that "serving a personal interest requirement" to include the simple act of speaking about Wooten. The Ethics Act isn't intended to deny state officials their rights as citizens, nor to impede their mere communications as public officials, but to prevent them from taking actions with actual effects. There were no effects, as proved by the fact that the monstrous Trooper Wooten still has his badge and gun!

To the contrary, there are obvious entirely public interests to justify those communications — viz, the security of the State's governor and the reputation of the Department of Public Safety — that would have to be ruled out. Branchflower purports to have done that by insisting that — without having spoken to Todd Palin directly, but solely on the basis of his (Branchflower's) inferences from circumstantial evidence — Palin's claims to be concerned for his family's safety were completely pretextual, as in, not even a partial truth, but a total lie designed to conceal the unitary motivation of revenge. That is utter nonsense, of the sort that would get Mr. Branchflower quite literally laughed out of any courtroom and punched in the nose by most husbands and fathers whom he might similarly insult.

(There were noises made at some point about the Department's budget being cut; it was never cut, it was increased. Of course doubters can always say, "It would have been increased even more but for that mean old Gov. Palin," but at that point we're into deep paranoia territory.)

Thus, returning to Mr. Powers' analogy, while I'm not given a free pass for my other torts committed against the people I lawfully decide in my sole discretion to throw off my property, by the same token, the people I throw off my property aren't excused, in trying to make their case that I defamed them, from proving evey element of defamation. Here, except for the reassignment (analogous to the throwing of him off my property) there's no proof of any effect from the alleged pressure on Monegan to fire Wooten. And proof of such an effect is an absolute requirement, be it for defamation, or or any other tort, or a violation of the Alaska Ethics Act.

No, I'm satisfied with my post as it stands now at HughHewitt.com. I don't think it needs updating, and I'll let my remarks here stand in lieu of swimming amidst the filth of commenters like jukeboxgrad over at the VC blog.

(11) Beldar made the following comment | Oct 12, 2008 1:15:16 AM | Permalink

Mike: I've read the post you quoted above from PowerLine. I don't have anything to add to what they've said there, and their traffic vastly exceeds mine. I'll continue to ponder and follow that story in hopes that I'll have some useful insight to share. But thanks for the pointer in the meantime.

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