(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:

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:

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

Does last week's volatility in the financial markets foreshadow next week's volatility in the political markets?  Gambling on subprime loans led the nation and the world to last week's financial destruction.  Will the prospect of an enormous gamble on an unknown and untested, hard left Chicago-machine pol with an Ayers-Rezko-Wright-ACORN resume and backed by a Pelosi-Reid Congress trigger a massive sell-off in Obama futures?

Politico.com reports on the battle for Pennsylvania.  McCain-Palin is focused on the Keystone State as the battleground in the final three weeks, and on a growth agenda that will contrast with the "shared misery" of Obama-Pelsoi-Reid.

The financial panic helped Obama establish a lead and he and Joe Biden are doing everything they can to project inevitability (and getting a lot of help from their MSM friends in doing so, right down to the "hate-speech-at-McCain-rallies" stories).

But as the shock of market losses wears off, the American public is asking how to repair the damage, and they know from example after example that the statist model being proposed by Obama-Pelosi-Reid not only doesn't work, it deepens all economic woes.  The Dems anti-trade stand and their addiction to non-strategic spending guarantees at best a very weak return to growth.  The massive tax hikes promised by Obama will kill any prospect of vigorous growth for the foreseeable future.

Every vote for every Dem is a vote for a prolonged recession and ruinous fiscal and trade policies.  Last week's stampede in the markets created a stampede in the polling as well, but three weeks is a very long time for people to consider their economic and security futures, and all the battleground states are either tied or low single digit leads for Obama.  

Here's where McCain's relentlessness and experience of last year and the early primaries pays off.  He knows --and Obama's team knows-- that this is an environment in which a massive shift can occur.  The message is two fold: Voters can't trust Obama, and they need Reaganesque policies.

We can skip the Carter years 2.0.  We don't have to have four years of failed experiments in redistributing wealth and sharing out pain that ends up with everyone poorer, much more unemployment, and a terribly weakened national defense.  

McCain-Palin are stumping in the land of the bitter, gun-clinging God loving Steeler and Eagles fans.  It will be wonderful irony if the people Obama insulted at a cocktail party in San Francisco turn out to be the ones who kept their heads and turned the tide for John McCain.
 

I will be broadcasting from HI next week as part of my first local market trip to the Aloha State.  The reading list for the week long trip:

Prompted by our two hour long conversation this past week (the best guide to the election yet, transcript here, and podcasts here and here), Victor Davis Hanson's A War Unlike Any Other: How the Athenians and Spartans Fought the Peloponnesian War



Paul Johnson's The Renaissance,



and Robert Kurson's Shadow Divers

ProtectMarriage.com has posted the story of the San Francisco 1rst Grade class taken to City Hall to observe the new order, which will be repealed if Prop 8 passes.

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

I know that for some folks, Saturday is another workday. But this Saturday has been a wonderful day for me, at least, to take a breather from bad economic news and fierce political argument.

And how 'bout them Longhorns? On this perfect fall day in Dallas, two highly-ranked teams of college athletes from, respectively, the University of Texas at Austin (my college and law school alma mater), ranked No. 5, and Oklahoma University, ranked No. 1, squared off in their annual football rivalry, the Red River Classic. They delivered a gem of a game — a Texas win this year, 45 to 35 — that did honor to all concerned and certainly entertained everyone who watched.

Remember to take time to enjoy the good times within even these intense times, friends and neighbors. I hope you all have found some means for release and relaxation on this fall day in a country we love.

— Beldar

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

I extend my condolences to Betsy Newmark, the fine blogger who's long been on both Hugh's and my blogrolls as the writer of Betsy's Page, on the loss of her father, George Washington Bamberger, last night at age 93. Like my own, Betsy's dad was a veteran, a volunteer who'd served in the Pacific theater in WWII. And as also was true in my family, she only heard some of her father's war stories when he told them to his grandchildren. But he no doubt reveled quietly and long in the calmer life of a husband, father and grandfather, and businessman. We all mourn with her the passage of yet another unpretentious American hero of our Greatest Generation, and we commend her father and his entire family for his life lived well.

— Beldar

Read all the details here, and note that the weak-kneed anti-free speech police lacked anything resembling conviction.  Classic bullies: They melted away when confronted.  Bravo, Mark Steyn and Maclean's.

Powerline's Scott Johnson notes that one of America's greatest singers/songwriters has begun his seventh decade.  (HT: RobinsonandLong.com.)

Yes, my conservative friends, I know he is a lefty's lefty, but he is also one of the very best at his craft.   I expect lefties to admire Steyn's artistry with words, and our side to recognize artistic excellence regardless of political differences.

A magnificent site, especially The Liberty Timeline.

From The Atlantic's Ross Douhat and Volokh's Ilya Somin.  (HT:  Election 2008).

Douhat:


Somin:

We know Barack Obama's line - Bill Ayers lived in my neighborhood, that he met him a couple of times on a board, he thought Ayers had been rehabilitated.  Believable?

James Rosen of Fox News conducted a half hour phone interview with Mr. Ayers, the unrepentant terrorist and co-founder of the Weathermen Underground, in May of 2004 as part of his research into his John Mitchell biography, The Stong Man.  Listen and read, and then judge for yourself whether Obama's claim that the radical beliefs of an associate and friend of fifteen year weren't known to him is believable or not.  

Copyright James Rosen, 2004

Rosen-Ayers 1

Rosen-Ayers 2

Rosen-Ayers 3

Rosen-Ayers 4

Rosen-Ayers 5

Rosen-Ayers 6

(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):

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):

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

The best news all week is this report of Obama's decision "to play it safe."  NFL fans know what this means: A hair raising close that can go against the team that plays against the deep threat only.

If you have any doubt about the volatility of presidential elections, be sure to read E.J. Dionne's piece on the subject from 1988, and the background on the 1992 British elections in which John Major was expected to lose, but in fact stayed Prime Minister. See: The Shy Tory Factor for interesting background.