Political Punch Op-ed from lead attorney in Alaska Troopergate Lawsuit

Sep 22, 2008

By now, most of the country has heard about "Troopergate" and Governor Palin's related conflict with several powerful members of the Alaska legislature.   This conflict arises, in part, out of a legislative investigation into media allegations that Governor Palin removed the state's Commissioner of Public Safety because he refused to fire her ex-brother-in-law, a state trooper.  As the lead attorney for one of two Troopergate lawsuits filed in Alaska last week, I am convinced that this legislative investigation is blatantly unlawful.

First, a little background on the investigation is in order.  According to the Department of Public Safety, the trooper in question used a Department-issued Taser on the Governor's 10-year-old nephew, operated his marked squad car while drinking alcohol, illegally shot a cow moose, and was subject to a domestic violence restraining order.   He also allegedly threatened to make Governor Palin's father "eat a [expletive] lead bullet."  Despite these findings and allegations, this trooper has not been fired.  Amazingly, he is currently stationed in the Governor's home community.   

Although most of us would probably agree that such a rogue trooper should not remain on the force, the ex-Commissioner himself stated to the Anchorage Daily News on August 30, 2008, that "[f]or the record, no one ever said fire [the trooper].  Not the Governor. Not Todd [Palin].  Not any of the other staff . . . ."  Even in the face of this very public admission, the legislative investigation drives blindly on.

Undercutting the investigation further, recently disclosed communications between the Governor's office and the former commissioner transparently reflect that the real reason he was removed from his position was due to his insubordinate refusal to implement the Governor's budgetary and fiscal policies.  For example, on December 6, 2007, the commissioner called a press conference in support of his expansive budgetary plan, a plan that was directly at odds with the Governor's policies.  Two months later, he released a letter to the Governor advocating for additional funds for items that the Governor previously vetoed. 

Despite warnings, this at-will political appointee continued to work outside of the governor's budgetary vision for the state.  His insubordination culminated with a planned July visit to the congressional delegation in Washington, designed to secure funding for a program that the Governor had not yet approved.  Shortly thereafter, the Governor offered the commissioner another position in the administration, but he chose to resign instead.

And yet the investigation continues.  Fueled by the partisan legislator at its helm, this investigation has morphed into a political circus.  Almost weekly, the lead legislator makes a statement prejudging the outcome of the supposedly neutral investigation.  He has mentioned that the investigation could lead to impeachment, has declared that the investigation's conclusion "[i]s likely to be damaging to the Governor's administration," and has shortened the term of the investigation to facilitate a late "October surprise" – right before the election.  This legislator directs the investigation to its very detail, even dictating which witnesses will be interviewed.

To make matters worse, the legislative director, as well as his nominal investigator, both have personal connections to the former commissioner.  The legislator worked directly (and publicly) with the commissioner to circumvent the Governor's budgetary plans.  He expressed his "anger" when the commissioner lost his job.  And his investigator's wife used to work for the commissioner.

Biased investigators who have made up their minds at the outset of an investigation cannot be trusted to conduct an investigation fairly.  Such an approach violates the due process guarantees of the Alaska Constitution that ensure "the right of all persons to fair and just treatment" in the course of investigations.  Additionally, the broad grant of authority to legislature's investigator to look into "potential abuses of power and/or improper actions by members of the executive branch" lacks any meaningful restriction and violates the separation of powers.

Finally, the investigation itself is being conducted through Alaska's Legislative Council, an administrative committee created by statute to provide "technical assistance in accomplishing the research, reporting, bill drafting, and examination and revision of statutes, and general administrative services essential to the development of sound legislation."  How the legislature believes it is empowered to investigate the governor under this statute stretches the imagination.

The Alaska Personnel Board is the only body that Alaska law expressly empowers to investigate ethical malfeasance by the executive branch.  As complaints by both the Governor herself and the state troopers' union are before it, the matter should be resolved there, out-of-site of the national political scene and out-of-reach of partisan investigators.    

©Joseph W. Miller