McCain Lawyer Tries to Shut Down the Palin Ethics Probe

A former top Justice Department prosecutor now working for John McCain's presidential campaign has been helping to direct an aggressive legal strategy aimed at shutting down a pre-election ethics investigation into Alaska Gov. Sarah Palin.

The growing role of Edward O'Callaghan, who until six weeks ago served as co-chief of the terrorism and national security unit of the U.S. attorney's office in New York, illustrates just how seriously the McCain campaign is taking the so-called "troopergate" inquiry into Palin's firing last summer of Walt Monegan, Alaska's Public Safety Commissioner.

O'Callaghan emerged publicly for the first time this week when he told reporters at a McCain campaign press conference, in Anchorage, that Palin is "unlikely to cooperate" with an Alaskan legislative inquiry into Monegan's firing because it had been "tainted" by politics. That new stand appeared to directly contradict a previous vow, expressed by her official gubernatorial spokesman on July 28, that Palin "will fully cooperate" with an investigation into the matter.

But O'Callaghan (who resigned from the U.S. attorney's office at the end of July to join the McCain campaign) is doing more than just public relations when it comes to "troopergate." He told NEWSWEEK that he and another McCain campaign lawyer (whom he declined to identify) are serving as legal "consultants" to Thomas Van Flein, the Anchorage lawyer who at state expense is representing Palin and her office in the inquiry. "We are advising Thomas Van Flein on this matter to the extent that it impacts on the national campaign," he said. "I'm helping out on legal strategy." A McCain spokesman said Wednesday that, while Van Flein was originally hired last month by the Alaska Department of Law to represent Palin and her office, that arrangement has been changed over the past week and he is now being paid only by Palin and her husband — not state funds. He has not billed the state for his work, the spokesman said.

The investigation revolves around allegations that Palin fired Monegan, the state's top cop, because he rebuffed intense pressure from the governor and her aides to dismiss Mike Wooten, a state trooper involved in a messy custody battle with Palin's sister. Critics, including Monegan himself, have accused Palin of being obsessed over the Wooten matter—sending him repeated e-mails about it—in an attempt to use her public office to settle a private score.

But Palin, while acknowledging her chagrin that Wooten was still on the state police force (she told ABC's Charlie Gibson last week that the trooper was engaged in "dangerous and illegal activities" and had "threatened to kill my dad") has said she never directly told Monegan to fire the trooper. Palin and her lawyers have also said that she had other reasons for firing Monegan, including a dispute over the state public-safety budget and actions her lawyers have depicted as "insubordination." (Wooten has denied Palin's charges that he threatened her family and contended he has already been appropriately disciplined for his wrongdoings—including Tasering his 10-year old stepson—as a state trooper.)

All this may seem far afield from O'Callaghan's recent work, which included among other matters, directing the Justice Department's sprawling investigation into abuses in the United Nations oil for food program for Iraq. But ever since last month, when he landed in Alaska as part of a McCain "rapid response" team dispatched from campaign headquarters in Arlington, Va., O'Callaghan has been helping to direct a hardball legal strategy aimed at thwarting inquiries into the Alaska governor on all fronts.

In that capacity, O'Callaghan, working with Van Flein, devised a plan that involved shifting the investigation away from the Alaska Legislative Council—a bipartisan panel that had authorized the probe in a unanimous vote on July 28—and into the hands of the Alaska Personnel Board, a body that is ultimately answerable to Palin herself.

In an unusual filing with the Personnel Board on Sept. 2, Palin essentially filed an ethics complaint against herself, arguing that the state panel should conduct an investigation into whether her firing of Monegan violated state ethics laws. "Our state statute says, if there's a question about actions of the governor…you go to the Personnel Board," Palin said last week, explaining the move in the Charlie Gibson ABC interview. "So we've said all along that that's appropriate."

Simultaneous with that, McCain spokesmen and allies in Anchorage began repeatedly attacking the legitimacy of the Legislative Council probe, contending it had become "tainted" and "politicized" by Obama supporters—most notably a Democratic state senator, Hollis French, who was officially named the "project director" of the probe.

Then this week, Van Flein (again assisted by O'Callaghan) filed a new motion with the Personnel Board. This one argued that, after a review of the evidence, including internal e-mails within the governor's office, the governor's lawyers had determined there was "no probable cause" to pursue any ethics inquiry into Palin at all. As a result, it argued, the previous motion for an ethics inquiry (which Van Flein himself had filed less than two weeks ago) should be dismissed.

Asked why the ethics motion had been filed with the Personnel Board in the first place, O'Callaghan said that was the "proper place" to conduct any ethics probe—and in the meantime, the governor's lawyers needed the time to review the e-mails and "figure out" the evidence relating to the Monegan firing. Now that they have done so, he said, there is no further need for the matter to be pursued. "There was no Ethics Act violation and there is no need to go forward with this," he said.

The evidence accompanying the motion—and released by O'Callaghan at the Anchorage press conference—does appear to show that there was some displeasure among the governor's top aides over Monegan's pushing for appropriations from the state legislature that had not been cleared with Palin's budget director. Monegan's department "is constantly going off the reservation," the governor's deputy chief of staff wrote to the state budget director in a May 7, 2008 e-mail.

But the e-mail release also seemed to show Palin's own intense focus on Wooten—and why he was still working for the state. In one July 17, 2007 e-mail to Monegan that started out talking about a bill by a legislator, named Les Gara, dealing with the sale of guns to individuals judicially deemed to be a threat to public safety, Palin suddenly veered off topic.

"The first thought that hit me when reading [about the Gara bill] went to my ex brother-in-law, the trooper who threatened to kill my dad, yet was not even reprimanded by his bosses and still to this day carries a gun, of course," Palin wrote. "We can't have double standards. Remember when that death threat was reported, and follow-on threats from Mike [Wooten] that he was going to 'bring Sarah and her family down'-instead of any reprimand. We [sic] were told by trooper union-personnel that we'd be sued if we talked about those threats. Amazing. And he's still a trooper, and he still carries a gun, and he still tells anyone who will listen that he will 'never work for that b*itch' (me) because he has such anger and distain [sic] towards my family."

Even O'Callaghan acknowledged today that Palin's motion to dismiss her own ethics complaint against herself is not likely to immediately end the matter. The Personnel Board has already appointed its own investigator to look into the Monegan firing, and that work, will at least for the time being, proceed until the Board can take up the new motion.

In the meantime, members of the Senate Judiciary Committee, by a three to two margin, voted last Friday to subpoena 13 witnesses, including top aides to Palin, and Todd Palin, the governor's husband. (The swing vote to issue the subpoenas came from state Sen. Charlie Huggins, a Republican from Palin's hometown of Wasilla, who said: "I say, let's just get the facts on the table, the sooner the better.") They voted to do so after Steve Branchflower, the special counsel hired to conduct the probe, presented what he said, was new evidence into an alleged attempt by Palin's office to interfere with a workers' compensation claim filed by Wooten. A state contractor, who Branchflower declined to identify by name, and who handled the workers'-comp claim, testified that her boss had told her "something to the effect that either the governor or the governor's office wanted this claim denied," the special counsel said.

It is unclear whether the subpoenas will be honored, however. A court battle over them seems likely. Five Republican legislators filed a lawsuit in state court to block the investigation. O'Callaghan confirmed to NEWSWEEK that day, that Van Flein, the Palin's lawyer, had accepted service of the subpoena for Todd Palin. Another McCain spokesman said the lawyer is "reviewing" the matter and hadn't yet decided how the First Gentleman—as Todd Palin is known—will respond.