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Opinion | Alabama solicitor Brasher not fit to be a federal judge

Josh Moon

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One of the dumbest legal conversations I ever had with anyone in Alabama state government was with someone who is currently on the verge of landing a lifetime federal judgeship — one of the most coveted and important positions in the U.S. justice system.

The conversation, like most of my legal conversations, involved gambling. Two gambling proposals had been put forth by the Alabama Legislature, and the Alabama Attorney General’s Office had just issued a statement supporting one over the other. The statement was confusing and incorrect in its assessment of the applicable laws — specifically, the AG’s office had misinterpreted Indian gaming laws.

So, I called to ask about the statement and the mistakes.

On the other end of the phone was Alabama’s Solicitor General, Andrew Brasher — the same man the Trump administration has now nominated to serve as a federal judge in Alabama’s Middle District.

For the better part of 15 minutes, Brasher argued with me about the laws. I won’t get too deep into the weeds of it all, but the confusion on his part involved the requirements of states and tribes entering into Class III gaming compacts.

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Now, my legal expertise would typically fill a medicine cup. But inside that cup would be Alabama and tribal gaming laws. And I know those laws because some of the best legal minds in America have explained them to me during the course of writing numerous stories.

Brasher was wrong. But instead of admitting it, he challenged me to provide him the relevant statutes. I did. He was still wrong.

But instead of admitting the mistake and retracting the statement the AG’s office released, the response back was: “We believe it’s complicated.”

Quite the legal ruling.

To put that another way, the response was: We have a conclusion that we want to reach and we will twist the laws any way we have to in order to get there.

And that, in a nutshell, is why Andrew Brasher shouldn’t be anywhere near a federal bench.

Whether it’s defending bogus press statements or wasting taxpayer money on disgraced “expert” witnesses or utilizing junk science to push a political position, Brasher’s legal resume is chock full of examples of him choosing politics over law.

It’s so bad that on Friday the Leadership Conference on Civil and Human Rights wrote to the Senate Judiciary Committee tasked with approving Brasher’s nomination urging it to oppose him. The lengthy letter cited numerous examples of Brasher submitting briefs or making arguments in court that were roundly rejected by the U.S. Supreme Court and other federal courts.

Among other ludicrous arguments, Brasher has argued that … there was no racial gerrymandering in Alabama redistricting plan (the Supreme Court disagreed), demanding proof of citizenship on a voter registration card was legal (the Supreme Court disagreed), that only straight people should be allowed to adopt (the Supreme Court disagreed) and a fetus should granted an attorney.

There’s also this little nugget: During his confirmation hearing, Brasher refused to say that Brown v. Board of Ed. was correctly decided. Because, you know, who is he to say — a judge or something?

But probably the best summation of Brasher’s politically-driven career as an ideological prosecutor in Alabama came during a federal trial over Alabama’s restrictive laws on abortion clinics — laws that would have certainly forced most or all of the clinics to close. Unable to locate credible witnesses — medical doctors, psychologists, psychiatrists, etc. — who would speak on the state’s side, Brasher and the AG’s office trotted out the paid stooges.

Four “experts” were paid more than $300,000 to testify on the state’s behalf. They were so bad that the judge in the case all but openly mocked them, and things became so bad that at one point, while questioning his witnesses, Brasher began to bang his own head on the wooden lectern.

That’s what happens when you choose politics over law in the courtroom. The system isn’t built to handle it. Things go awry. Justice falters.

And that’s what you risk by approving Brasher.

 

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Bill Britt

Opinion | Marshall axes Hart to please political donors

Bill Britt

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Despite nearly two dozen criminal investigations in progress, three empaneled grand juries and a major power grab underway at the State Ethics Commission, Attorney General Steve Marshall ambushed Special Prosecution Division Chief Matt Hart before he could enter his office at 501 Washington Avenue in Montgomery on Monday.

Marshall did not terminate Hart because he was an ineffective leader or an unsuccessful prosecutor, but because Hart is both those things and more.

Marshall is evil, but he’s also weak, which makes him a dangerous man.

With Hart’s forced resignation, Marshall kept his private campaign promises to his big donors that Hart would be gone after the general election. So, just 13 days after his election as attorney general and four years until the next election, Marshall moved on Hart like a coward who shoots a lawman in the back in a Hollywood Western movie.

Marshall is a spineless little man who withers in the presence of a man like Hart. It’s not just his lack of character and willingness to cut deals to achieve power, but his utter disregard for the justice system he oversees.

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Marshall is treacherous and is now unfettered from the constraints of an honest prosecutor.

While Marshall may have silenced Hart’s voice in the grand jury and at criminal trials, it is doubtful that Hart as a private citizen will remain quiet.

Hart knows what Marshall is up to, as well as the intrigue of the elites who paid for his office.

When disgraced Gov. Robert Bentley appointed Marshall, he intended for the men to clash. It was part of the plan. Bentley did not select Marshall because he was the best candidate to take on the attorney general’s position, but because he had a history of compromised investigations and virtually no record of prosecuting public corruption as a district attorney. But, it was Marshall’s willingness to investigate Hart and Van Davis, who successfully prosecuted former Speaker and convicted felon Mike Hubbard, that caused Bentley and his paramour, Rebekah Caldwell Mason, to green-light his appointment.

When Hart confronted Marshall over his compromise with Bentley, there was little hope that a working relationship would be in the making between the two men.

Marshall is afraid of Hart, but he is also jealous of him. After only a few weeks at the attorney general’s office, staffers noticed how jealous he was of Hart’s success, not only as a winning prosecutor but because of the admiration he enjoyed in the press. Staffers laughed at Marshall’s man-crush on Hart behind his back, saying he should grow a beard and maybe the press would like him, too.

It was Marshall’s jealously and unwillingness to ruffle feathers that separated the men; one wanting to be admired and the other wants to fight crime.

Over the last year, the relationship continued to strain as Hart set his sights on some of Marshall’s influential donors or those close to them.

APR repeatedly warned during the 2018 election cycle that if Marshall was elected, he would immediately turn on Hart. But that didn’t matter to the voting public because despite his corruption, Marshall had an R by his name. As for the power-elites, they are happy to see Hart go.

With Hart out of the picture, the so-called Ethics Reform Commission has free reign to gut current ethics laws without so much as a peep from the attorney general.

This is just one of the reasons Hart’s departure will result in the further erosion of good government in the state.

Currently, there are serious investigations underway, but there is little belief they will continue with any degree of success with Hart gone. Marshall has no interest in pursuing public corruption or white-collar crime because prosecutors make enemies and Marshall wants nothing more than to be liked.

Other unresolved issues that are of concern, not least among them, is the recent ruling by the State Ethics Commission, which gives the Commission power to reduce violations of the State’s Fair Campaign Practices Act by a mere vote of the commission. After being pressured by Hart in October, Marshall wrote the Ethics Commission asking them to withdraw and reconsider Advisory Opinion No. 2018-11, which granted the commission broad powers never envisioned by legislators who wrote the law. Hart’s ouster put in doubt whether Marshall will even pursue the issue, leaving the Ethics Commission with expanded powers.

According to sources within the Ethics Commission, there is a general feeling that Marshall will not challenge the commission because he is facing campaign finance charges for excepting $735,000 in alleged illegal contributions from the Republican Attorneys General Association (RAGA). Marshall has voices worrying that the commission has him over a barrel, leading him to tiptoe around any confrontation with the commission. As one insider said, “They got Marshall where they want him and he’s a pu**y who wouldn’t confront a granny in a wheelchair without his Chief Deputy.”

Another source of unfinished business is a recent ham-handed attempt by Ethics Commission Executive Director Tom Albritton involving a case against Scott Phillips and Trey Glenn. Last week, Albritton issued a press statement saying Jefferson County District Attorney Mike Anderton had requested the Ethics Commission help in indicting the two men. But, it was the Ethics Commission who approached Anderton, sources within his office have confirmed. Albritton also faces criticism and possible legal troubles because he disclosed the indictments before Phillips and Glenn were arrested, which may be a severe breach of state law. If Albritton is involved in wrongdoing, it would have fallen to Hart to prosecute.

November 18 is a dark day in Alabama history because corrupt politicians and those that want to corrupt now have a champion in Marshall.

Marshall can now say to those who put him in power, “Promises made, promises kept.”

But Marshall will do well to remember that actions have consequences, and there is a cost to corrupt acts, even if they are legal. More than one unscrupulous politico has met his fate at the end of a keyboard.

Marshall is saying he will take a hit from the media for firing Hart, but not a single elected official will say a word against him, according to those in the attorney general’s office.

Marshall believes that four years is long enough for people to forget he axed one of the state’s most successful prosecutors in the middle of multiple investigations to benefit his political donors.

But not everyone forgets, and there is a lot more to know about Marshall and what he has to hide.

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Opinion | RIP, ethics

Josh Moon

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The hope for ethics in Alabama’s state government died on Monday.

To be fair, it had been on life support for quite some time, having taken on several near-fatal blows over the last few years. But on Monday, after months of trying, Alabama Attorney General Steve Marshall finally took ethics out back, like Ol’ Yeller, and shot it dead.

Marshall’s firing of prosecutor Matt Hart, head of the AG’s special prosecution unit, was the death knell. The final straw. The five-finger death punch that snuffed out any small, lingering flame of hope.

That’s basically all Matt Hart was at this point — one small ray of hope in an otherwise hopelessly corrupt state.

Hart was one guy hellbent on making Democrats and Republicans alike respect the rule of law and stop profiting from their public positions.

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That’s all he wanted. And if he believed you had skirted the laws or accepted shady cash in order to benefit yourself, God bless you.

Larry Langford tried him. Robert Bentley tried him. Mike Hubbard threw everything and the prison sink at him.

Matt Hart beat ‘em all. And laughed at ‘em later.

God, they hated him, these people who want to use government as their own little tools for personal financial growth. Because Hart knew their games. He knew how they set up innocent-looking schemes that enriched only a handful of their friends or their friends’ businesses. He knew how they masked their sins with words like “business friendly” and “economic development.”

Matt Hart just kept beating them at their own games. So, they had to get rid of him.

Enter: Steve Marshall.

For more than a year now, APR has written story after story, column after column detailing the many, many ways in which Marshall has proven to be completely devoid of basic ethics and willing to do anything to get and keep the job of AG.

Consider this: In a state filled with crooked, spit-on-their-own-mothers-to-get-ahead politicians, Marshall was the only person willing to accept a quid pro quo deal to get the AG gig. Bentley, as APR reported, shopped the deal around, offering the AG’s job to anyone who would agree to investigate Hart and his team.

Marshall was the only one to take it.

And that was just Marshall’s start. Once the campaign for AG heated up, and real challengers entered the race, the panic in Marshall knew no bounds.

The guy took campaign contributions from Hubbard’s lawyers and a guy who bribed Hubbard. While a grand jury in Lee County was still considering charges against the briber. And while a state appeals court was considering Hubbard’s appeal.

Take a moment and think about that.

But Marshall wasn’t nearly done.

When the going got tough in the Republican primary, Marshall accepted more than $700,000 in campaign donations from the Republican Attorneys General Association. He knew the money was illegal, because RAGA allowed its funds to be transferred PAC-to-PAC — a method used to obscure the original source of the funds.

Such transfers are illegal in Alabama, as Marshall knew well. Just before accepting the donations, he had submitted a brief in a case before the U.S. Supreme Court that challenged Alabama’s PAC-to-PAC ban. Marshall argued that the ban was a protection for the people and the only thing preventing a quid pro quo government.

He was right.

But it didn’t matter. Giving back the contributions, as Luther Strange had done a few years earlier, wasn’t an option. Marshall had to win. And he was willing to do anything.

And so, here we are.

This is what it looks like when your AG has been compromised. When he owes his political life to specialized interests of top donors.

Sometimes, those donors want you to turn a blind eye to corruption. Sometimes, they want you to lay back as another entity usurps your power. Sometimes, they want you to change the ethics laws so the dadgum things aren’t so tough. Sometimes, they want you to intervene in a major public corruption investigation. 

And sometimes, they want you to fire that pesky prosecutor who keeps treating the written law like the damn words have meanings.

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Bill Britt

Opinion | The political genius in film: William Goldman

Bill Britt

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Last Friday, Oscar-winning writer William Goldman died at the age of 87. Movie-goers and Hollywood enjoyed his wry wit and sardonic wisdom, but investigative reporters worldwide are forever in his debt for giving us the single best lead for tracking down public corruption and nefarious politicos.

Goldman wrote the screenplay for the movie adapted from Washington Post reporters Carl Bernstein and Bob Woodward’s book, “All the Presidents Men,” which follows the downfall of President Richard M. Nixon after the Watergate break-in.

During a pivotal scene in the 1976 movie, Woodward’s character, played by Robert Redford, is told by his anonymous government source known as Deep Throat to, “Follow the money.”

Nowhere is the line, “Follow the money” found in Woodward and Bernstein’s book. It is Goldman’s invention and pure reporting genius.

But tracking a money trail can be used in a broader context to understand why things happen the way they do in government.

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Let’s put aside, for now, the notion of public service and admit that a majority of what happens in politics is tied to the wants of one particular group or another. These groups or individuals, commonly referred to in the pejorative as special interests, are not necessarily evil. They just want what’s best for themselves and their interests.

During her first State of the State address nearly a year ago, Gov. Kay Ivey staked her ground with workforce development, job creation and an education proposal under her, “Strong Start, Strong Finish: from pre-K to workforce,” plan. Gov. Ivey has a detailed strategy for success, but her goals will be challenged by those who prosper under a system that is burdened with an entrenched bureaucracy, as well as those who dine off the Education Trust Fund without actually being a part of educating Alabamians.

Likewise, Alabama’s Speaker of the House Mac McCutcheon lists infrastructure, improving public schools, school security and stronger ethics laws as a priority. To enumerate the special interests that will line up to pick away at his goals would be a nearly impossible task.

Neither Ivey or McCutcheon will be swayed by personal gain as was their predecessors, but they will need a well-placed group of watchers to see who will work to undermine their best efforts. To do so means following the money.

Goldman wrote many other novels and screenplays, most notably, “The Princess Bride,” “Marathon Man” and “Butch Cassidy and the Sundance Kid.”

In Butch Cassidy and the Sundance Kid, the pair’s only hope of escaping a rapidly approaching posse is to cliff dive hundreds of feet into a raging river. During the tense moment, Sundance reveals he can’t swim to which Butch chuckles, “Are you crazy, the fall will probably kill you.”

Butch and Sundance were not winners, but they rarely doubted as an exchange between the pair shows.

The Sundance Kid: “You just keep thinking Butch, that’s what you’re good at.”

Butch Cassidy: “I got vision, and the rest of the world wears bifocals.”

Goldman’s characters displayed ironic humor in the face of defeat and generally find a way, at least for a moment, to turn a loss into a victory. Sometimes leadership is simply the ability to make it from one failure to the next.

An enduring line from the Princess Bride is, “Hello. My name is Inigo Montoya. You killed my father. Prepare to die.” However, any wise practitioner of the political arts knows as Goldman points out, there’s not much money in the revenge business.

Another phrase from the Princess Bride which is a mainstay of the movie’s fans is, “Inconceivable,” repeatedly uttered by the stooge mastermind, Vizzini. Every action in government is conceivable because it is human nature at work.

In Goldman’s “Marathon Man,” Dustin Hoffman plays an oblivious long-distance runner who becomes entangled in a case of stolen gems and sadistic henchmen.  During the film, Huffman’s character encounters a Nazi-dentist who drills Hoffman’s healthy teeth without painkillers, torturing him for the correct answer to the eternal question, “Is it safe?”

It’s politics, and it’s never safe. That is why there must be journalists who ask the tough question, dig for facts and report without fear or prejudice. We don’t see this as often as we should in state politics because there is a cost to truth-telling. But the price of not reporting is a price too high to measure.

Goldman was a genius who not only entertained us but made us think. In politics, we don’t all have to think alike, but it would be good to know that everyone is thinking.

With Butch and Sundance, he gave us a lesson in how hope springs eternal. In “Marathon Man,” we see that things are not always what they seem. “The Princess Bride” let us see how true love can conquer all, but in politics, follow the money if you want to know what’s really happening.

In the end Goldman summed up the human condition, “Life is pain, Highness! Anyone who says differently is selling something.” –The Princess Bride

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Opinion | Straight-party suicide

Joey Kennedy

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One wonders if the 2018 midterm elections will ever end. There are still races undecided, recounts going on all over the nation. The original thoughts that the results were only mildly in favor of Democrats on a national level have turned toward a true Blue wave, as Democrats continue to win close races in once-solidly Red districts and solidify their hold on the U.S. House and a few more state governments.

Well, except for Alabama. Our midterms are long over – apparently they were over even before state voters cast their (straight-ticket) ballots nine days ago.

There was such a Red wave in Alabama that even the closest statewide race between a Republican and Democrat was such a GOP landslide nobody even blinked. Instead, we yawned.

Oh, Alabama! We’re so far out of touch with the nation. Even Mississippi has a runoff between a Democrat and Republican. Georgia and Florida have marquee races that are still undecided. A Democrat flipped a U.S. Senate seat in Arizona. A diverse caravan of women have elbowed their way into that old, white man’s club in Congress.

We could have had some of that. We could have gone more progressive. Instead, we stayed solidly regressive.

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Sure, a chunk of the problem is the dysfunctional Democratic Party of Alabama, which stood by while highly qualified candidates were massacred. If changes aren’t made in the state party, we’ll see more of the same, too. Even as the nation becomes ever more forward-thinking, ever more “we’ve got to dump Trump,” Alabama loves its status as one of the lowest-ranking states in quality-of-life issues. In education. In health care. In compassion for the least of these.

Hey, but we got that Ten Commandments constitutional amendment passed, one that’ll cost Alabama more money it doesn’t have in losing legal challenges.

We Dare Defend Our Wrongs.

But a bigger problem with Alabama, and we’ve got many where elections are concerned, is that we still allow straight-party voting. Voters overwhelmingly took the lazy way out on election day. They didn’t want to go down the ballot and choose the best-qualified candidate for office. That’s too hard. That requires thinking. Instead, they just bubbled-in the “D” or the “R.”

As with so many reforms, Alabama is among those who choose to stay the archaic course. According to the National Conference of State Legislatures, only eight states allow straight-ticket voting these days. Of course, Alabama is one of them. We don’t hear Secretary of State John Merrill talking about reforming that voting anomaly. And even Texas, one of those eight states, is doing away with straight-ticket voting for the 2020 elections; Indiana, another one, doesn’t allow straight-party voting for at-large races.

It’s no coincidence, either, that just about every state that still allows straight-ticket voting is a solidly Red state. It’s just another way Republicans, whose agenda is completely out of touch with what is happening across America but are masterful at suppressing the vote, maintain their now-more-tenuous hold on power.

Straight-party voting goes both ways. In Jefferson County, now a solidly Democratic county, straight-party voting for Democrats left some outstanding judges out of jobs. That judges even run in partisan races is a flaw – party philosophy has no place in the law.

The loss is that up and down the ticket, there were qualified candidates on both sides. Too many voters, though, had to run home and watch Fox news, so they didn’t have time to think about their selections. Instead, they just blacked the “R” oval and settled into their easy chairs to watch Hannity.

Far too many voters aren’t responsible enough to educate themselves before an election, even on the most important offices – governor, lieutenant governor, attorney general, secretary of state, the Public Service Commission, statewide judicial seats, Congress.

Now, our Republican U.S. House delegation (Democrat Terri Sewell is the one exception) find themselves on the outs. They’re in the minority, with little power to do anything – not that any of the Republicans from Alabama exercised their influence when they had that power to begin with.

Republicans have been pretty successful at influencing low-information voters, and that’s to those voters’ detriment. When it comes to issues like preserving Medicare, Social Security, Medicaid, food stamps, access to health care, protection from health insurance companies on pre-existing illnesses, equal pay, protecting women against sexual assault, humane immigration reform, equal rights for all Americans, including minorities and the LGBT community, Democrats are more likely to stand up.

Republicans give out billions in tax breaks to billionaires, then try to make up the difference with cuts to the programs that disproportionately affect the very Alabamians who elected them.

You may not like that assessment. You may be offended by it. Well, get over it. That’s the truth.

Try thinking.

But if you don’t, at least you can vote that straight ticket.

Joey Kennedy, a Pulitzer Prize winner, writes a column every week for Alabama Political Reporter. Email: [email protected]

 

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Opinion | Alabama solicitor Brasher not fit to be a federal judge

by Josh Moon Read Time: 4 min
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