13 July 2006

[Part Three] My Old Kentucky Home:
Bare Knuckle Politics & The Courts
The Battle is Joined

When last we left our fearless Kentucky Politicians, the governor had pardoned anyone - past, present, or future - whom the attorney general's grand jury might indict. The AG indicts people anyway and, for good measure, indicts the governor for three misdemeanor offenses. The AG's office then took over from the local county attorney in order to try these cases in district court. The governor's attorneys ask the judge to recuse himself; he does, because he is friends with the person who made the original accusation. The governor pleads not guilty and his trial is set for the day after the election.

To begin with, the governor's lawyers move to have the AG and his office removed from the case because the AG may run for governor in the upcoming election.

However, the big battle is taking place in the Kentucky Supreme Court. The court is going to decide whether or not the AG can indict people after the governor's prospective charges pardon. Prior to the case Justice Roach and Chief Justice Lambert recuse themselves and the governor appoints the replacements to hear his own case. The AG's office howls in protest over the two people chosen and one of them recuses himself. The governor then tries to appoint another temporary Justice but the Supreme Court rules against him (six is enough). It doesn't do the AG any good, because the court still rules against the AG's indictments 4-2:
A gubernatorial pardon operates to cease any further legal proceeding concerning the pardon conduct including indictments.
. . .
We can think of no matter that would more affect the duties of a grand jury, or would more assist it in the conduct of its business, than an instruction informing it that the very offenses which it is investigating have been pardoned, and could never be criminally prosecuted.
The AG asks to extend the life of the grand jury so that "it" can issue "a public report detailing its investigative findings."

The governor moves the court to seal the report which the grand jury is going to issue at the AG's behest. In the meantime the Executive Branch Ethics Commission, 80% of whom were appointed by Governor Fletcher, gives an "unsolicited" opinion that it would be unethical for AG Stumbo to run for governor.
If Stumbo "contemplated an eventual candidacy ... he should have removed himself and his office from the merit system investigation" when Fletcher announced he would run, the opinion said.

The commission added: "Becoming a candidate for governor after the sitting Governor withdrew as a candidate due to actions taken by the Office of the Attorney General could lead, at the very least, to the perception that a conflict of interest existed all along."
Around the same time, Chief Justice Lambert, whose former chief of staff is now the governor's general counsel, added a note to a decision in which he opined that a sitting governor could not be pursued criminally unless he was first impeached. This caused a firestorm of comment. Much of this was legally incoherent, stating things like "The Governor of Wyoming was never impeached before her trial" which has 0% relevance as to whether, under Kentucky's constitution, a Kentucky governor could be charged without prior impeachment. However, by gleaning the articles we can find a couple of interesting tid bits. First and probably most important:
[In] a 1951 case [] Kentucky's high court held that a judge who was indicted on a charge of misfeasance in office could not be prosecuted because impeachment "sufficiently protects the public interest" and "must be considered exclusive."
Second, three Kentucky governors have been indicted and all of them have been Republicans. Hmmmmm . . . .

Next, the AG decides that he wants to call at least 68 people whom he suspects will invoke their right against self incrimination (68+ witnesses for misdemeanors - Wow, judges must be a lot more understanding in Kentucky). He argues that they have been pardoned so they have no reason to plead the 5th. Their attorneys argue that the Feds are still out there and the governor cannot protect them from federal prosecution. So then the Feds weigh in and proclaim:
Should any of your witnesses in Commonwealth v. Ernie Fletcher, ... testify pursuant to a compulsion order, the federal government may not use their testimony or any fruits of their testimony in connection with any subsequent federal prosecution of these witnesses.
Next, the ruling comes down as to whether the AG can participate in the prosecution - he cannot. However, his office can, just as long as he doesn't get involved (a little late, don'cha think?).

Next comes perhaps the silliest thing in the whole affair. The governor's office denies access to state employees at work to a Democratic website, BluegrassReport.org, which is rather unflattering to the Fletcher administration. The webmaster, a man who ran the losing Democratic campaign when the governor was originally elected, takes the case to court.

And this is pretty much where the battle stands today. I left out several things just to get to the meat of the matter. There's no mention of the fight with the Lt. Governor because it didn't involve the courts. There's no mention of Governor Fletcher appointing one man to the Kentucky Supreme Court in the middle of his election race with another judicial candidate because, to date, there's no connection with the ongoing legal warfare.

As someone who's neither living the fight nor getting Kentucky papers every day, I'm sure I missed some things. However, I think I got the general flavor of it right: tw politicians using every bit of power in their respective positions in a fight to the death.

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