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.

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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)

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.

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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