Lawmakers take attorney general to task over Troopergate

SUBPOENAS: Colberg advised last fall they could be ignored.

January 28, 2009 

JUNEAU -- State legislators assailed Attorney General Talis Colberg Wednesday for trying to kill the subpoenas issued during the Legislature's "Troopergate" investigation of the governor last fall.

The House Judiciary Committee grilled Colberg, an appointee of Gov. Sarah Palin, for about two hours. The committee chairman said he was incensed.

"I thought you did systemic damage to the rights of the Legislature to bring an appropriate subpoena against somebody," said Fairbanks Republican Rep. Jay Ramras. "You empowered these (Palin aides) with super rights. They were advised by you that they could ignore a subpoena."

Other committee members were also unhappy. Anchorage Democratic Rep. Lindsey Holmes said it was unclear to her whose interests the attorney general was supposed to be representing -- those of the citizens or those of the governor and members of her administration. Even North Pole Republican Rep. John Coghill, who didn't like the Legislature's investigation, said the subpoenas compelling the Palin aides to cooperate with it were valid and he wanted to make sure this does not happen again.

"I feel that a barrier to this Legislature is unacceptable when requiring information that's well within its authority," he said.

Colberg took the heat calmly, with his voice at times dropping to near inaudible levels as he defended himself. He emphasized his department never told anyone to disobey a subpoena -- just gave options to the seven state officials it was representing.

"The options they took were based on legal arguments that we had and issues we had with how these particular subpoenas were issued," he said.

Colberg's actions last fall, while Palin was under investigation and running for vice president of the United States, proved hugely controversial. Protesters in Anchorage demanded his removal from office.

Colberg said Wednesday that he doesn't dispute the Legislature can launch investigations and issue subpoenas. But he maintains the Senate Judiciary Committee did not get proper authority from the Legislature for the subpoenas at issue here.

Colberg took his arguments to the state Superior Court last fall in a lawsuit attempting to kill the subpoenas. He lost. The Palin aides subsequently gave statements to Steve Branchflower, the investigator hired after the Legislative Council unanimously ordered the investigation.

Branchflower's report found Palin abused her power in allowing her husband and top aides to push for the firing of a state trooper who is her former brother-in-law. But a second report, conducted by attorney Tim Petumenos for the state personnel board, came to the opposite conclusion and found that Palin was not responsible for any wrongdoing.

Ramras told Colberg on Wednesday that he considered the Petumenos report a "whitewash." But that's far from a universal feeling in the Legislature, and both Palin and Colberg have defenders.

At Wednesday's hearing, Palmer Republican Rep. Carl Gatto objected to how Colberg was being treated.

He said Colberg had a legal right to challenge the subpoenas.

"I've gotten the feeling since the beginning (of the hearing) that he's sitting here as a defendant. Is that the direction we were supposed to be going here today?" he said.

Ramras said he and others felt Colberg advised state officials to defy subpoenas, and the hearing was necessary to hash out the separation of powers between legislative and executive branches.

"I want to uncover exactly what went wrong in the manner in which the legislative branch was compromised by the attorney general's office," he said.

Colberg said he never advised the state officials to defy subpoenas. The department of law just made them "aware of their normal constitutional rights and options." It's not the first time someone has challenged a legislative subpoena in court, he said.

Ramras pressed Colberg on whether he would do anything different if he had to do this over again.

"Would you behave the same way? ... What kind of rules do we have to have in place in order to get the attorney general's office to abide by the wishes of the co-equal branch of the Legislature and quit playing by the Jordan rules? The Jordan rules were, Michael Jordan got to travel, he got to foul, and the rest of the NBA couldn't play by those rules," he said.

Colberg said it's possible some things might have been done differently. But the subpoenaed state officials were entitled to legal counsel, he said.

"I think ultimately what we were doing was trying to do the right thing, and I think generally speaking we did try to do the right thing properly," he said.

The legal argument isn't settled. Colberg's appeal of his unsuccessful lawsuit over the subpoenas is pending before the state Supreme Court.

At least one change to the law is likely as a result of this. Last fall the Legislature wasn't in session so couldn't vote to hold people who defied the subpoenas in contempt. Coghill said he plans to propose a bill to clear that up and let legislators enforce subpoenas even when out of session.

Anchorage Democratic Rep. Harry Crawford has also proposed a constitutional amendment for the attorney general to be elected, rather than appointed. Judiciary chairman Ramras said he'd support that, but it would require a two-thirds vote of the state House and Senate, as well as a public vote.

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