Troopergate: Palin's Abuse of Power -- A Lawyer's View

By oregondem , Daily Kos. Posted October 11, 2008.

How could Gov. Sarah Palin have "abused her power by violating Alaska Statute 39.52.110(a) of the Alaska Executive Branch Ethics Act" if her firing of Commissioner of Public Safety Walt Monegan was a "proper and lawful exercise of her constitutional and statutory authority"?

The first of these is Finding Number One in the Report to the Legislative Council filed on Friday by the independent investigator for the Alaska legislature.  The second is Finding Number Two.

Gotta love the language we lawyers use, dontcha?  I am going to provide some explanation of how both Findings can be issued in the same report.

The key is to focus on the words "abused her power by violating" the ethics laws (which apply to all employees of the executive branch of Alaska state government) in her attempts to get Trooper Wotoen fired, and the words her "constitutional and statutory authority" in regard to the actual firing of Commissioner Monegan.

She lawfully exercised her authority in terms of the laws setting forth what authority she has, but she violated different laws by acting in a manner that abused her use of power in regard to Trooper Wooten.

To put it another way, the Alaska constitution and statutes allow the Governor to do certain things, such as hire and fire officials at will.  If she engages in illegally unethical behavior, she has still exercised her lawful authority.  A court cannot overturn her actions as unconstitutional or contrary to the statutes setting forth how much authority she has.  

But her exercise of power in an illegally unethical manner is still a violation of law -- a different law.

Think of it this way:  Let's say that you are a major national politician and you have a gambling problem (as some do) and that you use your rich wife's money for your habit, without her knowledge or permission.  Heck, let's even say that you took the money from your kids' school's fund for band uniforms and gambled with it.  

You did not violate any statutory authority related to gambling.  The casino can't say that, as punishment for stealing from the kids (an illegal act) you have to give your winnings back to the casino!  Your punishment for that violation is elsewhere.

You still violated your power by acting in an unethical manner -- in fact, in a manner prohibited by law.  It is a question, in part, of where the remedy lies for the stealing of the kids' money in my gambling example, or the abuse of the public trust in the case of Gov. Palin's actual actions.

Page 48 of the Report points out that Alaska's ethics law states:

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.

After listing 18 "events" of improper behavior by Sarah and Todd Palin, the Report says on page 67 that Gov. Palin "knowingly" engaged in various kinds of improper behavior with regard to Trooper Wooten and therefore "abused her power as Governor" and "violated . . . the Ethics Act."

The Report also said on page 65 that "compliance with the code of ethics is not optional" and that the efforts to benefit her personal interests was a violation of "trust."

On page 71, the Report notes that the Constitution of Alaska allows the Governor to fire the head of any department for "virtually any reason."  It notes that she could have had some reasons in additional to her unethical motives, and that is enough to make the action constitutional.

She did not exceed the constitutional authority of the Governor's Office -- but perhaps even Governor Palin would agree that there are some standards that are even higher than those of a state's constitution.  Those who are religious would even say there are some "laws" that are higher.

The Alaska constitution sets minimal standards -- basically no limits at all -- on the exercise of authority by its Governor.  But abuse of power is still unlawful, in a separate sphere.  

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