One of Gov. Sarah Palin's top aides was supposed to be interviewed under oath Wednesday as a key witness in the ongoing investigation into her firing of Public Safety Commissioner Walt Monegan. But the aide, Frank Bailey, abruptly backed out amid what his lawyer said is uncertainty over jurisdiction.
"I canceled that," Bailey's lawyer, Greg Grebe of Anchorage, said Wednesday. "I'd say about 6 o'clock last night I learned that the governor's office was contesting the jurisdiction of the Legislature to handle this matter. It's my understanding that they believe the jurisdiction is properly with the personnel department. I can't make a judgment or a call on that."
His client will cooperate with whomever ultimately is in charge of the investigation, Grebe said.
"I don't want him to be a political football being used by one side or the other and being inconvenienced in all of this hoopla. I want it done once and I want it done right," the lawyer said.
The state Legislative Council, a bipartisan panel of senators and representatives, ordered an investigation that is supposed to wrap up by Oct. 31 into whether Palin's administration abused power in the dismissal of Monegan. The heart of the matter is whether Palin, her staff or family pressured Monegan to fire her ex-brother-in-law, Trooper Mike Wooten, and then whether Palin fired her commissioner when the trooper stayed on the job. Retired state prosecutor Steve Branchflower was brought in as special counsel.
Monegan has told the Daily News that Palin sent him two or three e-mails discussing Wooten and adding to the pressure.
On Wednesday, the Washington Post reported that Monegan showed Palin's e-mails to the paper, but declined to provide copies. The story says Palin's e-mails pointed out problems with Wooten's continued employment and ridiculed a trooper investigation into Wooten's conduct.
"It was a joke, the whole year long 'investigation' of him," Palin wrote in a Feb. 7, 2007, e-mail, according to the Post. "This is the same trooper who's out there today telling people the new administration is going to destroy the trooper organization, and that he'd 'never work for that b****', Palin'.)"
That e-mail came a few weeks after Palin's husband, Todd, met with Monegan to press the case for action against Wooten based on a series of incidents including illegally shooting a moose, Tasering his stepson and drinking while driving his trooper vehicle, the newspaper said.
Palin's note recounted the transgressions, including his killing of the cow moose under his wife's permit, according to the Post. When the moose was killed, back in 2003, Palin's sister Molly McCann was married to Wooten and she drew the permit.
"He's still bragging about it in my hometown and after another cop confessed to witnessing the kill, the trooper was 'investigated' for over a year and merely given a slap on the wrist," the e-mail said, according to the Post.
That appears to contradict a background paper recently released by the McCain-Palin campaign that says the family never knew that Wooten had been disciplined, which is one reason Todd kept pressing the point.
Palin says she never pressured anybody, doesn't know that anyone on her staff did, and wasn't aware of what Todd was up to. She has called Wooten a dangerous "rogue trooper" and says that any contacts about him were legitimate. Monegan was terminated because of differences over the budget, she says.
Thomas Van Flein, an Anchorage lawyer being paid by the state to represent the governor, said he thinks only the state Personnel Board has the authority to look into what he considers an ethics matter involving the governor. He wants the Legislature to drop its investigation.
The governor is now running for vice president alongside Republican Sen. John McCain. Is the campaign calling the shots?
"I am making the legal strategy for the governor. I have a legal team. We conduct our own strategy internally. I am not working for the McCain campaign and they are not working for me," Van Flein said.
Still, questioning the Legislature's jurisdiction could tie up the case in court and delay a resolution. Van Flein said he's trying to get it sorted out this week so that doesn't happen.
Van Flein says the legislative investigation is like "a secret grand jury" and that's one of his problems with it.
Sen. Hollis French, a Democrat from Anchorage and the project's director, said the Legislature has the right to investigate and that he intends to push on. Both he and Branchflower are former state prosecutors.
"Stephen is working hard over the next two weeks to do a bunch of interviews. ... This certainly will not help him get his work done on time," French said of Bailey's cancellation.
French said he's consulting with Republican legislative leaders. The process will be fair to Palin, he said.
Palin filed an ethics complaint against herself to get the matter in front of the Personnel Board.
Nicki Neal, director of the state Division of Personnel and Labor Relations, said Wednesday that the board will meet soon in executive session -- closed to the public -- to begin its work. Palin had asked for the ethics case to be open. Neal said she'll check into how that relates to the board meetings.
Bailey, the governor's director of boards and commissions with a $78,500 annual salary, has been on paid leave since Aug. 19 as a result of what Palin has called a "smoking gun" conversation with a trooper lieutenant about Wooten. He is paying for his own lawyer.
In the phone call, which was recorded by troopers, Bailey told Lt. Rodney Dial that "Todd and Sarah are scratching their heads, 'Why on earth hasn't this, why is this guy still representing the department?' He's a horrible recruiting tool, you know."
Palin has said Bailey wasn't speaking on her behalf, and Bailey has said the same thing. The phone call doesn't prove her staff members were pushing troopers and Monegan to get Wooten fired, she has said.
Bailey will cooperate, once it's clear who's in charge, Grebe said.
"No. 1, he's still an employee of the state," Grebe said. "No . 2, he's stated publicly what his position was, which is that no one put him up to making the phone call. Sarah Palin was not involved. He is going to say the same thing under oath. This is just to try to make sure we are going through the proper legal proceedings."
Palin has made repeated public statements that she'll cooperate, and that hasn't changed at this point, Van Flein says.
What if the Legislature won't drop its investigation? "Haven't crossed that bridge yet," Van Flein said.