[Update: Oops.  Looks like I shouldn’t have trusted Johnson after all.  This isn’t Michalski’s decision—it’s the Defendants’ brief, written by Peter Maassan, for whose clients Michalski ruled.  That means this is second-class, legally-mandated snark instead of first-rate, smack-down snark.]

I’m probably the last person you’d expect to agree with KC Johnson—the final post in the aforelinked series is titled “Absolutely, Positively the Last Words I’ll Write about KC Johnson or Durham in Wonderland”—so when I link to his post on yesterday’s Michalski ruling, know that I do so reluctantly. At issue is the so-called “Troopergate” filing, in which six Alaskan senators sought to quash the legislature’s investigation into possible abuses of power by Governor Sarah Palin. Here’s Michalski’s summary of the events to date. The Plantiffs’ argue

that the court must immediately enjoin the legislative investigation because “[a]s the nation watches, Senator French [D], Senator Elton [D] and Mr. Branchflower [are making] the Alaska Legislature and the State of Alaska a laughingstock.”

On this point, and this point alone, Michalski agrees:

In this politically charged atmosphere, perceptions differ. Consider: Alaska’s Governor pledges her full cooperation with the investigation, then reverses court when selected for national office. The Governor files an ethics complaint against herself, then moves to dismiss it as meritless. The announcement that a witness will disobey an Alaska legislative subpoena comes from a spokesman of the McCain Campaign. Six Alaska legislators file suit, asking the court to rule that the Legislature—their own coequal branch—has no authority to investigate abuses of power by the Executive. The Attorney General, the highest law enforcement officer in the state, advises witness that whether to comply with subpoenas is a matter of personal choice.

Plaintiffs may truly believe that Alaska has become a “laughingstock,” but they should look at someone other than Defendants here for the source of the humor.

Michalski then addresses the case-law behind the Plaintiffs’ argument:

Plaintiffs give relatively short shrift to the legal bases for the relief they ask for, and with good reason. In support of their extraordinary request—that the court shut down a duly authorized legislative investigation in the final weeks of its life, solely to forestall a possibly negative impact on the fortunes of one political party, Plaintiffs are able to cite . . .

Read the decision itself for the legal niceties. I’ll focus on the rhetorical effect:

. . . Plaintiffs are able to cite:

—not a single case from any jurisdiction . . .

—not a single case from any jurisdiction . . .

—not a single case from any jurisdiction . . .

—not a single case from any jurisdiction . . .

—not a single case from any jurisdiction . . .

—not a single case from any jurisdiction . . .

—not a single case from any jurisdiction . . .

—not a single case from any jurisdiction . . .

Michalski’s conclusion?

Alaska law is unambiguous on these issues, and Plaintiffs failure to cite it, while lamentable, is understandable as well . . . .

[Plaintiffs’] obviously half-hearted argument cites no case law and relies on no legal principles . . . .

Again, if there were a single case in America that supports any of these highly dubious propositions, Plaintiffs would presumably have brought it to the court’s attention . . . .

Rarely, if ever, has a request for such extraordinary injunctive relief been made on such flimsy legal grounds.

It’s difficult to tell whether Michalski believes the legislators are ignorant of the law or merely partisan hacks. At times, he seems to believe the former and sounds like a high school Civics teacher: “In the tripartite form of government shared to some degree by every one of the U.S. states,” &c. This condescension could be a rhetorical ploy on his part, but Michalski sometimes seems convinced that the legislators have a Palin-esque understanding of the separation of powers, as when they

confuse two very different concepts: the actual exercise of executive power (which of course is for the Executive), and the power to investigate the Executive’s exercise of executive power (which is a fundamental power—and duty—of the Legislature . . . . Since all executive powers are given by law to the Executive, and since every action by the Executive is presumably taken pursuant to its executive powers, the Alaska Legislature—according to Plaintiffs—is forbidden from investigating any executive action at all. For six sitting legislators to come into court and seek thus to eliminate one of the Legislature’s most fundamental and historically important powers—and all, apparently, for the prospect of short-term political gain in one national election—is stunningly short-sighted.

What we have here, then, is an example of legislators willing to cede powers inherent to it at the behest of an executive branch which believes all powers—every last one of them—are proper to the office of the Executive. Now, I don’t know about you, but isn’t it ironic that conservatives are complaining that Palin isn’t Bush, and that Biden’s repeated attempts to smear her by association are unwarranted the day after Michalski’s decision appears?

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