Sunday, October 11, 2009

Investigating Rell

Some people in Connecticut, not a few of whom would be pleased to see their friends and acquaintances occupy Governor Jodi Rell's position, already have decided, perhaps prematurely, that it would be perfectly proper to haul the governor off to jail without observing the usual niceties.

“First the verdict,” says the Queen of Hearts in Alice’s Wonderland, “then the trial.”

Most reasonable people would agree that the Queen of Hearts got it backwards.

Very quick out of the shoot was Kevin Rennie, a Hartford Courant columnist who first congratulated Ted Mann of the New London Day for having performed a public service “by reporting on documents related to a polling deal dressed up as public policy that smelled so bad it put Snow White in a foul mood.” Snow White is former Democratic House Speaker Jim Amman’s sobriquet for the governor. Then Rennie plunged the sword in up to the hilt: “Even John Rowland, who went to prison for corruption, did not engage in the dirty enterprise that Rell, Moody and Dautrich concocted. Rowland would get the state Republican Party, not state government, to commission Newhouse to conduct a poll at the start of a new legislative session.”

Worse than Rowland; it doesn’t get any worse than that.

Very likely, the most damning charge in the Rell indictment involves Attorney General Richard Blumenthal.

It’s difficult to reconcile what is reported of him in the Dautrich memo with any legitimate study on the budget. Without re-reading the memo – I exaggerate somewhat -- Dautrich intimated that Blumenthal’s characteristics were comparable to those of St. Francis Assisi, with a little Grand Inquisitor thrown in for good measure. Blumenthal is, according to a focus group assembled by Dautrich, one of the most competent politicians in the state.

Now, it so happens that Blumenthal — highly partisan and several times considered by his party as a respectable candidate for governor – has one great failing: He cannot resist rushing in where even angels fear to tread. And here he is true to form. Blumenthal has allied himself with the state’s bipartisan auditors of public accounts; together they will determine whether Rell has misspent state tax dollars on what at first blush appears to be a campaign poll gussied up as a University of Connecticut research project.

As yet, no one has raised the question: Should Blumenthal or his office take part in the investigation?

If Blumenthal plays a major role in the investigation, may he not legitimately be accused of playing politics? That chord has already been strummed by the Rell administration.

More importantly, any penalty assigned for Rell’s infraction may fall on the objection that a material witness, Blumenthal, should not be prosecuting the case, or even investigating it. Blumenthal’s participation as both a party to the case and a prosecutor may not unusual for his office – such things happen– but that participation would lend a great deal of weight to any objections.

Others have noted from time to time a structural deficiency in the attorney general’s office. Historically, Blumenthal’s office devolved from the king’s lawyer in the colonial period. It seems reasonable to suppose that the attorney general should be hemmed in by statutory and constitutional regulations, but this appears not to be the case. Very little positive law prevents the office of attorney general from meandering over its historical banks whenever it suits Blumenthal’s political purposes. Courts may control his authority by rebuking him, but this does not happen often enough.

There are two grave dangers here: First, the powers of all state offices should be limited by statute or constitutional proscription; and secondly, Blumenthal now has put himself in the position of being a money raiser for the state, The attorney general has just contributed to state coffers $500,000 dollars “earned” by him in a suit. This is the road to Hell, paved always with good intentions. After a time, money not justice determines the track of politics. You end up trawling for suits because you are expected to bring into your office the same amount year after year. That is not good for the state or the office or Blumenthal.

Initially and historically, the attorney general’s office was intended to represent the interests of state agencies, an executive department function. On some occasions, the attorney general has overridden state agencies and taken a position that is hostile to an agency’s interest. If Blumenthal is not representing the interests of state agencies when he jumping the fence and countermanding judgments made by agency heads, how are the interests of such agencies to be represented, and by whom? What matters here is not that Blumenthal may be right or wrong in a specific case. By stepping outside the historic connection that should bind him to the executive department, Blumenthal, a freebooter, is wandering between the powers of separation lines, which is the bulwark of our always fragile democracy.

That’s never acceptable. No state office should range this widely and wildly. Most other offices in the state are narrowly defined and fall under the supervision of one of the three branches of government, which assures that a balance of power will be maintained. Blumenthal’s office occasionally leaps over these barriers with great agility. He prosecutes erring businesses on the word of whistleblowers; he advises the legislature; and his advice, practically speaking, almost has the force of law. Advice of this kind may be constitutionally sound when it is addressed to the executive department to which Blumenthal’s office should be attached. It is the role of appellate courts to direct legislatures -- after all the niceties of prosecution have been rigorously observed and the competent judicial authority has determined that a law written by the legislature needs to be adjusted.

Perhaps the attorney general’s office could use a little statutory redefinition. In any case, Blumenthal should not serve a prosecutorial or investigative function in a case in which he is a legitimate prosecutorial witness.

UPDATE  MONDAY OCT. 12, 2009 9:40

According to a report in the Journal Inquirer by Keith Phaneuf , the discussion of Blumenthal was not initiated by Dautrich. Focus group members brought up Blumenthal’s name, and Dautrish allowed the discussion to shape itself.

But while the initial questions focused on lawmakers and Rell, some participants immediately spoke up about Blumenthal, according to focus group records obtained by the Journal Inquirer.

“Participants by and large said that Attorney General Richard Blumenthal is a strong leader they would have faith in to lead them out of the budget deficit problem,” the report states. “… One participant thought that Blumenthal was on television and ‘out there’ as much as the governor.”

When later asked about the principles they valued in a leader, those participants who mentioned Blumenthal were allowed to discuss which principles applied to him.

But Dautrich said the focus group process, while designed to keep people focused on established topics, doesn’t work well if participants — such as those who wanted to mention Blumenthal — are interrupted or barred from speaking about something somewhat off-topic.

“You put a bunch of people around a table and they are going to talk about what they want to talk about,” Dautrich said. “I brought the idea of leadership up and some people immediately wanted to talk about Dick Blumenthal."

The money spent on the focus group, the Inquirer reported, was about $2,000.

Initially, Dautrich had suggested a poll and sent a series of questions to gubernatorial aide Lisa Moody, but Moody rejected the notion because, according to the report, she thought a poll was “too political.”

After the two had agreed on a focus group instead, Dautrich sent Moody a list of questions that did mention Blumenthal’s name, as well as other leading politicians.

These kinds of questions, Dautrich acknowledged, according to the Inquirer’s report, “never should have been included in the package he sent Moody, adding that he hastily was assembling a sample budget poll for her review by pulling questions from several past voter surveys he had conducted.”

Said Dautrich, “I made the mistake of copying and pasting some questions from past polls without thinking carefully about how it would be interpreted. I never intended for that to be the final questionnaire, but I can see where that conclusion might be drawn. In retrospect, it was a huge mistake.”
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