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Josh Moon

Opinion: Andrew Brasher still isn’t fit to serve as a federal judge

Josh Moon

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It is not news that Donald Trump has nominated partisan hacks to serve as federal judges — at pretty much every level. 

Hacks are his thing. 

(In reality, Trump likely has never nominated anyone, just stamped his absurd signature on whatever list of rightwing idealogues the Federalist Society plopped down in front him.)

But I happen to know one of the hacks coming up for confirmation to the 11th Circuit Court of Appeals. 

Andrew Brasher. 

The guy who’s been a federal judge for about 15 minutes. 

It is astounding to me that I have to write, again, about Brasher and why he’s unfit to serve as a judge in a federal appeals court or any federal court or state court or even the court on that show “Hot Bench.” It is also extremely depressing. 

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Because Brasher is the worst sort of nominee — he has no judicial ethics. 

Instead, he has charted a pathway to success for himself and he couldn’t give two damns about the law, about precedent or about the people he will cause to suffer due to his complete indifference to canons of judicial ethics. 

There are many, many examples I could use to demonstrate this. The last time I wrote about Brasher’s ineptitude, I brought up the time that I had to explain gaming laws to him — just after his office (he was the solicitor general for Alabama at the time) had sent a letter to all state lawmakers offering incorrect guidance on proposed gambling legislation. 

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There was also the time he banged his head on a wooden lectern during questioning of his own witness, who the state was paying handsomely to provide absurd testimony in an abortion case. 

But none of those really capture the true awfulness of the man who could be elevated to the second highest court in the country. 

This one does: During a hearing in that aforementioned abortion case, it came to light that Brasher and his office had paid tens of thousands of dollars for the “expert” testimony of a few “doctors.” That included one guy who believes abortion causes mental illness, and another guy who wrote all of the material and outlined testimony for the others. 

The latter guy is Vincent Rue, and federal judge Myron Thompson became suspicious that Rue had essentially written a report for Dr. James Anderson, the abortion-causes-mental illness guy. Brasher went to great lengths to assure Thompson that that wasn’t true and that Anderson’s testimony would be his own. 

Rue’s involvement in this litigation is no different than the involvement of the attorneys or the attorneys’ in-house paralegal staff,” Brasher told Thompson. “Dr. Anderson testified multiple times that his opinions are his own, based on his extensive experience as a physician.”

None of that was true. 

Thompson later noted that Anderson testified that his report submitted in the case was “… drafted, in its entirety, by Vincent Rue.” 

“It became apparent that Rue’s involvement in drafting this supplemental report reached beyond the typical involvement of an attorney or litigation consultant in helping an expert put his opinions into words or providing background research,” Thompson wrote. “Anderson presented the supplemental report as his own work by virtue of his signature at the bottom.”

So, to sum that up: Brasher hired a set of quack doctors with taxpayer dollars, allowed them to submit bogus “expert” reports and then lied to the judge to cover it up. 

Because that’s the kind of guy he is. 

If you doubt that, read through the trove of emails published by the Great Falls (Mont.) Tribune a few years ago. The emails, obtained through an FOIA request, document the political nature with which Montana’s former solicitor general, Lawrence VanDyke, operated his office. 

Most of those emails show VanDyke coordinating with other solicitor generals and state AGs across the country to latch onto each other’s hot-button amicus briefs, which they submitted in any case that might make the daily mentions on “Fox and Friends.” 

Brasher wrote briefs to get his name attached to all sorts of big cases — from a photographer suing over being forced to photograph a gay wedding in New Mexico to guns rights issues in New York and Connecticut (where 20 first-graders had recently been gunned down in their classrooms) to requiring proof of citizenship to vote. 

And those emails show he wasn’t simply going along with the party line. He was a warrior for the cause, providing reasons why his briefs opposing basic rights for gay people and arguing gun laws weren’t about public safety were the most sound legal positions. 

Of course, this was the same guy who defended Alabama’s racist gerrymandering, who went to bat for absurd abortion restrictions and who fought the rights of same-sex couples to adopt foster children. 

He’s awful. And you’re rewarding his awfulness. 

But worst of all, you’re denying a decent judge this coveted position. There has to be a judge — even a Republican judge, if that matters to you — out there with more experience and a better track record. 

If judicial ethics and standards matter at all to you, you’ll find that man or woman and appoint them instead.

 

Josh Moon is an investigative reporter and featured columnist at the Alabama Political Reporter with years of political reporting experience in Alabama. You can email him at [email protected] or follow him on Twitter.

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Josh Moon

Mike Hubbard finally going to prison should mean something. It doesn’t.

Josh Moon

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Mike Hubbard reported to the Lee County Jail on Friday. (VIA LEE COUNTY SHERIFF'S OFFICE)

Mike Hubbard reported to the Lee County Sheriff’s Office on Friday to begin serving his four-year prison sentence. 

Hubbard’s new mugshot was plastered all over news sites on Friday evening, and those stories and screenshots made their way around social media all weekend. Those pics and stories, and the thoughts of the state’s former most powerful lawmaker beginning a prison stint that will put him behind bars for more than 1,400 days, should send chills up the spines of current lawmakers. 

Those images of Hubbard should be the turning point in one of the nation’s most politically corrupt states. The former House speaker and leader of the Republican Party being just another inmate should be a clear deterrent to the future lawbreakers among Alabama’s lawmakers. 

But it won’t be. 

I hate to be a downer, because this should be an occasion that we celebrate. No, not Hubbard going to prison — that’s nothing to celebrate. We should celebrate the hard justice of what we did in this state — took a powerful, rich, white man who was misusing his public office for personal gain and we prosecuted that guy just like we would prosecute any other lawbreaker. 

The judge didn’t give him any breaks. The prosecutors from the AG’s office, which was led by another Republican, went after him hard. The jury held him accountable with a well-reasoned verdict.

That’s meaningful. 

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That sends a message. 

That cleans things up and makes your government honest. 

Unfortunately, everything that has happened since that jury verdict in Lee County over four years ago has undone everything that led to that verdict. 

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And this is not just me saying this, it was someone from the team who helped prosecute Hubbard — one of the guys who took unending BS from ALGOP leadership, various moles all around the AG’s office and shameless hacks within the Legislature. In fact, it’s so bad that the person didn’t want to be quoted directly, because it would only lead to more problems now. 

That’s where we are. 

The prosecution of Mike Hubbard wasn’t a lesson not to steal. It was a lesson in what the thieves needed to fix so they wouldn’t get caught like Hubbard did.

“I wish it weren’t true,” the person said. “The people who would violate the laws, they know if someone is really watching. And now, who’s watching?”

The answer, of course, is that no one is watching. 

The first act of the ALGOP in the post-Hubbard conviction world was to destroy the two things that led to his arrest: the Alabama Ethics Laws and the Special Prosecutions Division of the AG’s office. 

They have been successful in both. 

The ethics laws have been gutted to the point that it is now legal to do half of what Hubbard did exactly the way he did it, and it’s legal to do the other half if you can claim it was done in the interest of economic development. 

These changes were made for two reasons. The first was that lawmakers claimed innocent businessmen and lawmakers could be trapped by unclear ethics laws that could criminalize personal friendships. This is ludicrous and was easily avoided, as evidenced by the 95 percent of Alabama lawmakers who didn’t violate the laws. 

The second was that economic development could be hampered by these special laws. Except other states also have these laws and not one economic development deal in the history of this state was hampered by the laws in any way. 

But Alabama voters were going to vote Republican regardless of what the crooks pushed through, so here we are with gutted ethics laws. 

The other step was to gut the SPD, which investigated and prosecuted Hubbard and his pals. 

Within a few weeks of current AG Steve Marshall being elected, the former head of that department, Matt Hart, was shown the door. Responsibilities have been shifted and new directives handed down. 

There will be no more major ethics investigations. And especially not of Republicans. 

Hell, a litany of charges against former Democratic state Sen. David Burkette was handed over to the AG’s office. The Ethics Commission passed along at least three felony counts. 

Burkette resigned after being charged with a single misdemeanor. 

So, no, sorry, the end of Hubbard’s long, slow walk to prison is nothing to celebrate. It won’t be remembered for what it changed or the crime it stopped. 

Instead, it’ll be another sad marker of yet another point at which we could have made a change, could have chosen the more righteous path, could have altered the way this state handles its business. 

But we just kept doing what we’ve always done.

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Josh Moon

Opinion | The president lied. Thousands of people died

Above all else, we should know one thing: Lies won’t fix anything.

Josh Moon

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President Donald Trump speaking in 2017 just outside Harrisburg. (Staff Sgt. Tony Harp/U.S. Air National Guard)

The president of the United States lied to you. Knowingly. With the intent to deceive. With the knowledge that the lie would place your life and the lives of your loved ones in peril. He lied. 

And not some little white lie, either. He didn’t just deny knowing about the break-in, or tell you that he didn’t have sex with that woman. Things that really don’t matter to you. 

No, Donald Trump told a lie so big, so horrifying that it is, quite honestly, hard to fathom. Hard to adequately place in the proper context. Hard to assign the proper weight. 

Because Trump’s lie cost tens of thousands of Americans their lives. 

That is not hyperbole. 

When the president of the United States speaks on a matter as important as a pandemic, and the president knowingly and repeatedly diminishes the risks of that pandemic, the American public listens. Especially those who support him. 

That’s millions of people. 

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And now we know that as early as Feb. 7, Trump was not only aware of the dangers of COVID-19, he was familiar with specific issues that this virus posed. He was telling legendary reporter Bob Woodward, on tape, that it was “more deadly” than the flu, that it spread by air, that it was “very tricky.” 

In the meantime, he was telling all of us that it was no biggie. He repeatedly, in the early days of this virus, with cases and deaths at relatively small numbers, equated it to the flu and pointed out that the flu was MORE deadly. Hell, he held six — SIX! — indoor rallies with no social distancing protocols after his comments to Woodward. 

In an absurd trip to the CDC over a month after his recorded conversation with Woodward, Trump pointed out that only 11 people had died from COVID and that 36,000 people died a few years earlier from the flu. You know what such a statement says to people. 

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All the while knowing full well that what he was saying was complete and utter BS. And that what he was saying — and his repeated provocation of his supporters — would place tremendous pressure on governors all over the country, and especially in red and purple states, to resist life-saving shutdown actions. 

Alabama was one of those. Gov. Kay Ivey and her staff resisted strict shutdown measures for weeks, even as cases grew and hospitals filled. Sources familiar with that process have said repeatedly that the governor’s office received nearly constant pressure from conservatives — that group included elected lawmakers, top donors and voters — who were convinced by Trump that the virus wasn’t that bad.  

And, boy, was he ever pushing that nonsense. A few days before Ivey implemented a statewide shutdown in late March, Trump had started telling everyone that we would have the virus under control by Easter, anaThe president of the United States lied to you. Knowingly. With the intent to deceive. With the knowledge that the lie would place your life and the lives of your loved ones in peril. He lied.

And not some little white lie, either. He didn’t just deny knowing about the break-in, or tell you that he didn’t have sex with that woman. Things that really don’t matter to you.

No, Donald Trump told a lie so big, so horrifying that it is, quite honestly, hard to fathom. Hard to adequately place in the proper context. Hard to assign the proper weight.

Because Trump’s lie cost tens of thousands of Americans their lives.

That is not hyperbole.

When the president of the United States speaks on a matter as important as a pandemic, and the president knowingly and repeatedly diminishes the risks of that pandemic, the American public listens. Especially those who support him.

That’s millions of people.

And now we know that as early as Feb. 7, Trump was not only aware of the dangers of COVID-19, he was familiar with specific issues that this virus posed. He was telling legendary reporter Bob Woodward, on tape, that it was “more deadly” than the flu, that it spread by air, that it was “very tricky.”

In the meantime, he was telling all of us that it was no biggie. He repeatedly, in the early days of this virus, with cases and deaths at relatively small numbers, equated it to the flu and pointed out that the flu was MORE deadly. Hell, he held six — SIX! — indoor rallies with no social distancing protocols after his comments to Woodward.

In an absurd trip to the CDC over a month after his recorded conversation with Woodward, Trump pointed out that only 11 people had died from COVID and that 36,000 people died a few years earlier from the flu. You know what such a statement says to people.

All the while knowing full well that what he was saying was complete and utter BS. And that what he was saying — and his repeated provocation of his supporters — would place tremendous pressure on governors all over the country, and especially in red and purple states, to resist life-saving shutdown actions.

Alabama was one of those. Gov. Kay Ivey and her staff resisted strict shutdown measures for weeks, even as cases grew and hospitals filled. Sources familiar with that process have said repeatedly that the governor’s office received nearly constant pressure from conservatives — that group included elected lawmakers, top donors and voters — who were convinced by Trump that the virus wasn’t that bad.

And, boy, was he ever pushing that nonsense. A few days before Ivey implemented a statewide shutdown in late March, Trump had started telling everyone that we would have the virus under control by Easter, and that governors should start pushing people back to work by that time.

And all the while, the bodies were piling up.

We’re going to hit 200,000 dead Americans in a few days, probably before this month is up. More than 2,300 of those are from Alabama. And thousands more have been hospitalized, placed in ICU units for days on end, and many of those are still suffering the effects of the virus.

Those people matter. They were grandparents and parents. They were husbands and wives and sisters and brothers. They made a difference in the world, and they made a difference to the people who loved them.

This president, in the interest of saving the stock market, tossed them aside like garbage.

Even as the deaths started to mount, he never backed away from his message, he never stopped downplaying the seriousness of it. Because he didn’t want to create a panic.

Because if there’s one thing that Trump is known for — if it’s not telling people that caravans of immigrants are coming to murder their families and steal their jobs or that Black people are coming to kill whitey in the suburbs or that a plane of Antifa thugs was headed to the nearest city — it’s definitely that he doesn’t like to cause a panic.

The fact is Trump has failed miserably at managing the COVID-19 crisis — there is no arguing that point. And at the core of it all is this horrific lie that encouraged a pandemic to spin out of control in the wealthiest, most advanced country in the world. Currently, for all of his blabbering about “deaths are way down,” the U.S. ranks 10th worst in coronavirus deaths per capita, and we’re climbing rapidly. We’ll be top 5 very soon. We lead the world in active cases.

It’s one more failure in a long line of them that have left us facing a pandemic, a depression and a social justice uprising at the same time. Navigating the country out of this quagmire won’t be easy, and it’ll take an honest, decent human to do it.

But above all else, we should know one thing: Lies won’t fix anything.

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Josh Moon

Opinion | Alabama voters have surrendered their power to stop government ineptitude

There is a way to put a stop to this nonsense. A way to make sure that we’re not getting screwed over as badly. A way to make certain our tax dollars are being properly doled out. You have to hold politicians accountable. 

Josh Moon

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Do you think it’s right for a public board to hold a meeting — a meeting that’s open to the public and at which public business is discussed — that can’t be recorded?

No? Of course not? That’s just silly?

Try this one: Do you think it’s right for a court — maybe even the highest state court — to determine that a meeting of a public board wasn’t actually meeting if the board members listened and didn’t actually speak?

No again? That’s stupid? The craziest thing you’ve ever heard?

Well, I have bad news for you. And then even worse news.

Here’s just the bad news: Both of those things happened. The Public Service Commission had people removed from a very public meeting, at which a rate hearing was being conducted to determine whether or not customers of a regulated utility in this state should be forced to pay a fee for having solar panels.

Some folks were streaming that meeting so other citizens around the state might watch their government in action. Because, oddly, not everyone in the entire state of Alabama can take a day off work and drive to Montgomery to sit in a room and watch these meetings, but quite a few of those citizens would watch if provided the opportunity.

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But there’s nothing in the law that says hearings have to be recorded — although, there’s certainly nothing in Alabama’s Open Meetings Act that prevents it — and the members of Alabama’s PSC — a group that was founded for the express intent of protecting the public’s interest and preventing utility companies that operate as monopolies from gouging Alabama citizens — wanted no part of this new-fangled technology known as video recording and internet broadcasting.

And they wanted no part of it because if the people of this state actually got a good solid look at what went on in Montgomery on a regular basis, they’d be mighty pissed.

So, the administrative law judge tossed the folks out who were recording that meeting, and then the PSC hired a bunch of lawyers and paid them with your tax dollars to defend their right to not show you what happens at the — and pay attention to this name here — PUBLIC SERVICE commission.

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Now, such a spectacularly stupid argument — that it’s legal to block the public streaming of a public meeting called by a public board — could only be considered a legal conundrum in a one-party state. A state where you don’t need ethics or morals or basic common sense to win an election, just the backing of the right political party.

Because in such a state, where the judges are elected and their campaigns are funded by the deep pockets of corporations and big law firms, you end up with judges who do some of the most curious things. Things like attempting to redefine the word “deliberation.”

Because, you see, a meeting is defined as a “deliberation” between board members. And “deliberation” is defined in the Open Meetings Act as an exchange of ideas among board members meant to influence their vote.

Now, clearly, to every person with walking-around sense, such a definition means that a hearing at which experts testify on the validity and necessity of fees and rates should be deemed an open meeting under the Open Meetings Act, because the PSC members present were provided with information that directly affected their votes on a matter of public interest.

But not to the great legal minds who sit on Alabama’s Supreme Court. In an opinion written by a former employee at one of the big law firms, and using dueling dictionary definitions of the word “among” and leaning heavily on the absurd idea that simply being presented with information does not constitute an exchange of ideas, the ALSC ruled that the open meeting of the PSC wasn’t an open meeting at all because the PSC members never spoke.

The silliness of this should infuriate you.

The repercussions should make you even madder. Because the ALSC has just blown a hole in the Open Meetings Act, making it that much easier for public boards all across Alabama to keep secret how they’re spending — or misspending — your tax dollars.

Of course, there is something you can do about it, but that brings us to the worse news that I promised you earlier.

There is a way to put a stop to this nonsense. A way to make sure that we’re not getting screwed over as badly. A way to make certain our tax dollars are being properly doled out.

You have to hold politicians accountable.

You have to vote out people like Twinkle Cavanaugh and Chip Beeker and Jeremy Oden — the PSC commissioners who have failed you time and again on all sorts of issues. You have to actually pay attention to judicial races, and vote for the most qualified and fair judges.

But you won’t.

You’ll take the ballot and you’ll vote for the Republican. You’ll vote for the goobers who make insane promises on national issues that have no bearing at all on their office. You’ll vote for the people currently serving on the PSC and ALSC and in the Alabama Legislature.

And you’ll do it over and over again, never once holding them accountable for anything.

And then you’ll wonder why all of these silly, nonsensical things keep happening.

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Josh Moon

Opinion | Saban, Malzahn have led on COVID, social justice. They have the power to do more

Josh Moon

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Alabama football coach Nick Saban speaks at a march against injustice in Tuscaloosa.

It shouldn’t matter all that much what a couple of football coaches say and do when it comes to matters of racism and equality in this state, and around the country.

But it does.

It matters because we have, rightly or wrongly, hero worshipped football coaches for a long, long time now. Especially in Alabama, where names like Bear and Shug and Pat and Nick are revered and honored. We’ve listened to their speeches as though they were delivering messages from the Almighty, and bought the products they’ve pitched and marveled at their ability to coach up young men.

To illustrate just how much sway these coaches have in Alabama, a fairly mediocre one, on the basis of his coaching name alone — and I mean that quite literally — is the frontrunner for one of Alabama’s two U.S. Senate seats.

So, yeah, it matters what football coaches do.

And Gus Malzahn and Nick Saban have done good. Really good.

Over the last few months, as the country has grappled with the greatest social justice movement since the 1960s (and possibly ever) and the worst pandemic since 1918, Malzahn and Saban, unlike some of their peers, have been consistently out front, outspoken in their support of their Black players and unusually willing to use their football celebrity to advocate for important issues.

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Both have cut PSAs. Both have led their teams on marches for social justice. Both have leaned on science and compassion when dealing with COVID-19 issues.

Saban, of course, gets the majority of the media coverage, and rightfully so. He’s the greatest college football coach of all time and his contributions to both the pandemic and social justice issues have been bigger and more pointed. But Malzahn has been out front too, which is a bit of a change for a guy who’s normally low key.

Their voices have mattered — both to their players and to the state as a whole.

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You know this because there has been growing outrage among the goobers who gobble up Fox News, and believe the pandemic is a hoax and that racism died when President Obama was elected. And you know this because both coaches have been praised by those who might not ordinarily support such a cause.

Following Tuesday’s march with his players, which ended in front of the same door on the University of Alabama campus where George Wallace tried to block black students from entering, Saban said listening to his players and trying to understand them has given him a better perspective on the issues they face. He encouraged others to listen. He was unusually open about the personal changes he was making.

Malzahn has made similar comments, saying back in June that he just wanted to listen and support his players, to do whatever they felt was best and most effective. It was also Malzahn who encouraged Auburn Athletic Director Allen Greene to publish a social media video that went viral, in which he openly discussed issues of racial injustice.

Greene said that Malzahn’s support was what ultimately led him to publish the video — that the support of Auburn’s head coach mattered that much.

The Alabama players have also talked openly about how Saban’s support and encouragement have emboldened them and led to more positive change around campus.

And so, with that in mind, I’m going to ask more of Malzahn and Saban. I’m going to ask more of Bruce Pearl and Nate Oats. I’m going to ask more of every college and high school coach in this state.

Because all of your voices matter.

You are respected in your communities, within your locker rooms, and in some cases, all around the state. You have unique perspectives and even more unique insights into the everyday lives of thousands of young people and their families.

And look, maybe the ills of our state shouldn’t fall on you, especially the ills that fall outside of the ones already addressed by the various charity work all of you do. Maybe those ills should fall to the men and women who sit in public offices and take public dollars for the specific job of addressing public problems.

But look around. They’re failing, and they’re failing miserably.

Mainly, they’re failing because every single issue — from child welfare to basic healthcare to even more basic human decency — has been turned into a political issue, to the point that there’s a political winner and a political loser if you get a homeless kid a hot meal and a safe place to sleep.

But as the current situation has shown us, you folks don’t have that problem. You can push for changes because changes need to be made. You can push for human decency and kindness and caring for sick people and feeding the needy and providing every child with a quality education and the means to get it.

And you can do it without politics getting in the way.

So, for all of us who desperately want this state to be better and to do better — and who are growing weary of banging our heads against the wall — could you do a little more?

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