A reply to Prof. Post: It's nonsense to argue both that it was okay for Gov. Palin to actually fire Monegan, but that it wasn't okay for her to merely threaten to fire Monegan

Even very smart people sometimes miss the obvious, especially when there are politics involved. I'm sure he's a very smart person, but I think Temple law professor David Post wasn't thinking clearly when it comes to either the Branchflower Report or my first post about it at HughHewitt.com, and that's the point of my latest guest-post there.

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[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):

At page 69 of his bloated report, investigator Steve Branchflower squarely admitted — as he had to — that there is no doubt whatsoever that Gov. Palin acted within her legal rights to reassign Walt Monegan (rather than accept which, he resigned), even if that's characterized as her having fired him:

The governor may discharge department heads without cause. The constitution provides that department heads "serve at the pleasure of the governor." Alaska Constitution Article III, section 25; see also AS 39.05.030. Those who serve at the pleasure of their employers are subject to discharge at will. See Witt v. State Department of Corrections, 75 P.3d 1030, 1033 (Alaska 2003).

In light of this constitutional and statutory authority, it is clear that Governor Palin could fire Commissioner Walt Monegan at will, for almost any reason, or no reason at all.

Writing at the Volokh Conpsiracy, however, Professor David Post of Temple University’s Beasley School of Law summarily dismisses one of the main points made in my Friday evening post here, while ignoring all of my other points. On the one point of mine that Prof. Post chose to address — to the effect that the two main conclusions in the Branchflower Report are internally inconsistent — Prof. Post writes:

Bill Dyer’s report at Townhall.org (to which Jonathan Adler pointed in his original posting here) claims that the Report is fatally flawed with a central inconsistency: ...

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!

That doesn’t really make any sense. It is perfectly logical to conclude, as the Report does, that (a) the re-assignment of Monegan was lawful and consistent with the Ethics Act, and (b) other conduct of Gov. Palin was not lawful and consistent with the Ethics Act. This is hardly an “explicit refutation” or some kind of inconsistency.

Reduced to its nub (and setting aside the overstatement of the case against Gov. Palin that's inherent in this formulation), Prof. Post — like Branchflower — is thus in the position of arguing both that (a) it was perfectly okay for Gov. Palin to actually fire Monegan, but (b) it was not okay for Gov. Palin to threaten to fire Monegan.

Prof. Post gives no explanation for why that not a contradiction. And one need not be a law professor, or a lawyer, or even the sharpest tool in the shed, to see the absence of logic in that position. But let me play devil's advocate against myself. Let's focus for a moment solely on the only "other conduct" besides the actual reassignment of Monegan in which Gov. Palin, her husband, and her aides were alleged to have been involved.

All of it was, quite literally, just talk — oral and written talk, by Gov. Palin (in person or through emails), by First Dude Todd Palin, or by Gov. Palin's staff — which Gov. Palin's opponents (including Branchflower and, now apparently, Prof. Post) contend was intended to persuade or compel Monegan into taking some action with respect to Trooper Wooten.

Mere talk cannot be a violation of the Ethics Act, because by its clear and unambiguous terms, it may only be violated by an "effort to benefit a personal or financial interest through official action."

Ethics provisions like these aren't intended to be legislative enactments of mind or speech control. They're intended to control the actual — or at least the threatened — use of official power. If there's no use (or even threatened use) of official power, no taking (or even threatened taking) of official action, then there can't be an abuse of power.

And that's true even if we engage in the highly questionable supposition that merely gratifying one's purported desire for vengeance is a "personal interest" within the intention of the Alaska Legislature when it passed this statute. (Reading the statute that broadly would literally make it unethical for the governor to ever take any official action that left her pleased on her own behalf as a citizen; she'd be confined to only acting in ways that left her feeling at best neutral or unhappy in her private capacity. And that's just as silly, too.)

No, gentle readers, the only actual or threatened "official action" ever involved in this whole mess was the firing (or actually as it turned out, reassignment) of Monegan, allegedly because he wouldn't fire (or do something further involving) Wooten. And that action cannot simultaneously be both a "violation of the Ethics Act" and "a proper and lawful exercise of her constitutional and statutory authority."

This isn't hard. This isn't subtle. This isn't nuanced. This isn't something on which you have to let the "experts" — whether that's Branchflower, or Prof. Post, or me (since we all have exactly the same kind of law degrees) — do your thinking for you.

And I respectfully submit to you, for your own consideration, the proposition that this question is something on which you can reach the opposite conclusion only if, like Prof. Post, you just make an assertion that old Beldar here "doesn't really make any sense" — and then you quickly change the subject without bothering to deal with the specifics of what the "official action" (besides reassigning Monegan) could have been.

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UPDATE (Sun Oct 12 @ 9:10 p.m. CST): A commenter at my own blog asks for an example of a "personal interest" of the sort that I think might be implicated by the Ethics Act in Alaska. Section 39.52.960(18) of the Alaska Statutes (most current version, as quoted at page 50 of the Branchflower Report) defines that term as meaning "an interest held or involvement by a public officer, or the officer's immediate family member or parent, including membership, in any organization, whether fraternal, nonprofit, for profit, charitable, or political, from which, or as a result of which, a person or organization receives a benefit." Notwithstanding that lengthy definition, I think that the terms "personal interest" and "benefit" have to be construed very narrowly indeed to be workable, but here's an obvious example of a discrete, objective, non-financial but cognizable interest that was probably the sort of thing the Alaska Legislature had in mind when they defined the statute to encompass official action that benefited either "personal or financial interest[s]": A governor issues an official pardon in her own favor to excuse himself or herself from felony criminal responsibility under a state law. That's going to be an extremely rare situation, and it's obviously not this one.

Also: A commenter here points out that "official action" is defined in section 39.52.960(14) of the Alaska Statutes to include "advice, participation, or assistance, including, for example, a recommendation, decision, approval, disapproval, vote, or other similar action, including inaction, by a public officer." The commenter suggests that this permits "just talk" to be official action. I disagree that this makes all talk into "official action"; rather, what's key is that there be a specific action (or forebearance from acting) even if that action is performed by talking. Again, all that has ever been persuasively argued in the whole of Tasergate is that Gov. Palin impliedly threatened to take action against Monegan (firing or reassigning him) if he didn't act (critics say by firing, but that's their inference rather than anything Gov. Palin actually said) with respect to Wooten. Yes, the ethics statute — as substantially revised, broadened, and signed into law by Gov. Palin herself! — is intended to be broad. What it's intended to reach, however, is the exercise of power, through deeds or threats of deeds — and it's silly to say that it prohibits talking about a particular deed while not prohibiting the doing of that deed.

Finally: Branchflower only relied upon the first sentence of section 39.52.960(a), which contains the prohibition against "any effort to benefit a personal or financial interest through official action." As commenter Dan M notes on Prof. Post's post, that section goes on to recognize that "in a representative democracy, the representatives are drawn from society and, therefore, cannot and should not be without personal and financial interests in the decisions and policies of government." Moreover, under section 39.52.960(b), "there is no substantial impropriety if, as to a specific matter, a public officer's personal or financial interest in the matter is ... of a type that is possessed generally by the public or a large class of persons to which the public officer belongs." All Alaskans presumably share Gov. Palin's "personal interest" in not having child abusing law-breakers serve as state troopers. That should be the cue for good civil libertarians, including Prof. Post, to ask themselves: "Why are we lining up on the side of the trooper who drinks while driving his patrol car, illegally shot a moose while assigned to patrol fish and game violations, and Tasered his own 10-year-old stepson?" (I'll give them a hint: It starts with the letter "O.")

— Beldar