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Judge refuses to halt Troopergate probe

Sean CockerhamMcClatchy-Tribune News Service

An Anchorage judge today refused to halt the Legislature's investigation of Gov. Sarah Palin and denied the state attorney general's attempt to throw out legislative subpoenas.

Superior Court Judge Peter Michalski heard arguments from both sides this morning and ruled just before 5 p.m. this afternoon.

"I think it's great. It's a big day for the state of Alaska," said Peter Maassen, the lawyer representing the Legislative Council, which ordered the investigation.

Maassen said he expected the other side to attempt a last-minute appeal to the state Supreme Court.

It's last-minute because the investigator hired by the Legislative Council, Steve Branchflower, is to present his report in a week. Branchflower is looking into Palin's dismissal of her public safety commissioner, Walt Monegan, and whether she improperly pressured him to fire a state trooper divorced from her sister. There is intense national interest in the outcome now that Palin is the Republican nominee for vice president.

Alaska Attorney General Talis Colberg said he didn't know whether he'd appeal or if he'll now advise the subpoenaed state officals to cooperate with the investigation. He said he needed to consult with them.

"I'm going to talk to the clients before I talk to you," he said.

Five Republican state legislators sued to stop the investigation, and Colberg, a Palin appointee, asked the judge to throw out the legislative subpoenas. The governor's husband, Todd, and nearly a dozen state officials have refused to honor the subpoeanas ordering them to testify, and they face the threat of possible jail time.

Thomas Van Flein, the Anchorage attorney representing both Todd and Sarah Palin, watched the court hearing today. He said in an interview afterward that, if the judge refused to throw out the subpoenas, he would expect Todd Palin to testify after all.

"Short of appeal to the Alaska Supreme Court, which no one has talked about, I don't see why we wouldn't just have Todd testify," he said.

Anchorage Democratic Sen. Hollis French, who is overseeing the investigation, said he would let Branchflower decide how to deal with potential testimony from anyone who previously defied the subpoenas but now wants to cooperate.

The governor initially said she'd cooperate with the Legislature's investigation but changed course after her nomination as vice president, saying it's politicized and that the state Personnel Board has jurisdiction over whether she did anything wrong. The McCain-Palin campaign said the Palins are cooperating in the Personnel Board investigation, but it is out of public view and might not be done before the Nov. 4 election.

Today's hearing in a small courtroom downtown was packed with reporters from around the nation, as well as state legislators and local lawyers fascinated with the case.

Maassen, the lawyer representing the Legislative Council, told the judge if the Alaska Legislature doesn't have the power to investigate the governor, it's the only one in the U.S. that doesn't. He said it would have seismic consequences for the separation of powers between the branches of government if the judge were to shut down the investigation.

"Is there anybody in this courtroom who really wants to live in a state in which the executive (branch) is accountable only to the executive? I would think, I used to think, that the answer to that would be a resounding no," Maassen said in his argument.

Kevin Clarkson, a lawyer for the five Republican state legislators who sued, argued that Alaska's Constitution is unique in that it guarantees "fair and just" treatment of people who are under investigation by the Legislature.

"The manner in which the investigation is being conducted, the individuals by whom it is being conducted and the timing within which it is being conducted, violates the fundamental affirmative individual constitutional right to fair and just treatment," he said.

The bipartisan Legislative Council voted unanimously in late July to order the investigation. But Clarkson argued the Democratic lawmakers leading the effort have shown, through actions and statements to the press, that they support Democratic presidential nominee Barack Obama and Monegan, the public safety commissioner who Palin dismissed in July. He also pointed to statements by French, who is overseeing the investigation, that impeachment is a possibility and that Palin could face a damaging "October Surprise" from the Branchflower report.

Maassen countered that state legislators are inherently partisan and that is no justification for taking away their power to investigate.

State assistant attorney general Jan Hart DeYoung challenged the Legislative Council's authority to launch the investigation and for the Senate Judiciary Committee issue the subpoenas. The full Legislature, which is in recess until January, has never voted to approve the investigation, she said.

"As far as we can discern, the only reason the Judiciary Committee has been inserted into the process is that it is the committee that (French) chairs," Hart DeYoung argued to the judge.

Maassen told the judge that the Legislature has the power to investigate, and has the right to do so through a council or committee.

"We've heard this term rogue investigators and rogue legislators and rogue committees. ... If there were 40 legislators who really agreed this was a rogue process and needed to be brought to a screeching halt, those 40 legislators could convene a special session of the Legislature," he said.

Find Sean Cockerham online at adn.com/contact/scockerham or call him at 257-4344.


By SEAN COCKERHAM / scockerham@adn.com