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Archive for the ‘Attorney General’ Category

By Stephen Winham

“Senator, I believe the attorney general or the deputy attorney general has an obligation to follow the law and the Constitution and to give their independent legal advice to the president.” [Sally Yates in reply to current U. S. Attorney General Jeff Sessions during her Senate confirmation hearing as Deputy U. S. Attorney General, March 24, 2015].

“My responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts,” … “At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities, nor am I convinced that the executive order is lawful.” [memo to her staff before Sally Yates was fired as Acting Attorney General, January 30, 2017]

 Shortly after he was sworn in, on January 30, 2017, new Acting Attorney General Dana Boente released a statement rescinding Yates’ order and vowing to “defend the lawful orders of our president.”

 (emphasis mine)

I’m not an attorney, nor do I play one on TV (though there is an attorney named Stephen Winham in St. Augustine, Florida), but I firmly believe the roles of both the U S. and our state’s attorneys general are often misunderstood and, sometimes, misrepresented.  We repeatedly hear the attorney general is the “people’s attorney” – and, to a large extent, that is true. However, notwithstanding anything else they may or may not do, attorneys general are, primarily, the government’s attorneys.

In addition to upholding the constitution and statutory laws, AGs are sworn to represent and defend the government. They are, in other words, government’s in-house law firms.

So how can any attorney represent any entity and not also represent its sitting chief executive?

It is important to remember that we have a judicial branch of government.  Attorney General opinions are just that—opinions.  Only through the judicial system are legal disputes ultimately resolved. While justice departments can and do provide legal guidance, they are not the final arbiters on questions of the law, itself.  In a true legal sense, the judicial branch of government is designed to be a direct servant of the people.

Departments of justice, both state and federal, are executive, not judicial branch departments. We have sometimes allowed the U. S Justice Department and our own attorney general to assume judicial powers they don’t have. Attorney general opinions are often treated as if they are judicial rulings. They clearly are not. To the extent departments of justice enforce the law, they are subject to the court system in the judicial branch like everybody else.

In the first quote above, Yates answered correctly. It is certainly the responsibility of the attorney general to give independent advice to the president. If I hire an attorney, I certainly expect that person to give me “independent” legal advice. What value do I get from an attorney if I expect him or her to simply validate everything I say or do? That would hardly constitute sound legal representation. And, even if I have been charged with committing an illegal act, don’t I still deserve the best representation possible to ensure justice is served?

I firmly believe Yates was wrong in the second case – the memo to her staff.

Though he artfully hedged on the issue, Acting Attorney General Boente’s position is also correct.

What should Jeff Sessions, now confirmed as Attorney General, do now with regard to presidential executive orders? He has reportedly recently indicated he will defend the President’s travel ban order. However, during his confirmation hearings he voiced opposition to denying U. S. entry to Muslims on the grounds of religion.

I’m in no position to advise AG Sessions, but if I was I would suggest he tell Trump he will effectively defend any part of the order that is lawful, but make clear that he will have great difficulty defending anything in it that appears to be clearly unlawful. He should defend any ambiguities in favor of the President to the extent possible, of course, since he is our government’s attorney.

If Sessions and the President cannot come to an agreement, and assuming the President is unwilling to rescind and perhaps issue a modified order, the Attorney General should resign. He should certainly not air any disagreements with the President publicly, as Ms. Yates did. Regardless of her personal motive, she weakened her client’s (the government’s) case.

Like 42 other states, Louisiana elects its attorney general. Recent events lead me to believe it may be time to reconsider that. Our state attorney general has gone out of his way to take legal positions counter to those of our governor. Would he do so if the governor appointed him?

Again, how can our state’s attorney defend our state, but not its chief executive?

Jeff Landry’s motivation for constant bickering with the Gov. Edwards doesn’t really matter. What matters is whether he can effectively represent the state’s (and, to that extent, the people’s) best interests while doing so. Notwithstanding his laudable efforts in consumer protection and Medicaid fraud prosecutions, he does the state and its people a disservice by not providing legal representation to our governor and, even more so, by openly defying him.

For the good of our state, isn’t it time for Landry to tone it down?

 

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One thing about Louisiana politics: the only constant is that the rumors are never ceasing.

Another is that even though the rumors may be baseless, sometimes the logic behind them can actually make sense.

Sort of.

That is, if anything in Louisiana politics makes sense.

And so it is that those close to Gov. John Bel Edwards have been called upon to deny rumors—and they have—that he is courting the Republican Party as he ponders the political practicality of a switcheroo, a-la Buddy Roemer, John Kennedy, John Alario, and former U.S. Reps. Billy Tauzin and Rodney Alexander.

Still, according to a high-ranking State Republican Party official, Edwards’s intermediaries have been talking with State Republican Party Chairman Roger Villere about that very possibility. Efforts by LouisianaVoice to reach Villere for a comment have been unsuccessful.

Gov. Edwards’s office categorically denies the report, hinting if anything, it was the Republican Party that asked him to the dance.

Either way, it’s now got both sides flinging rocks at each other with the next governor’s election nearly three years away yet.

As with any decision of such magnitude, fraught with perils as it would certainly be (it worked for Kennedy and Alexander but not so much for Roemer), there are plenty of pros and cons.

First the pros:

Remember those old (and I do mean old) Tareyton cigarette ads in which some happy smoker sporting a black eye proclaims that he/she would rather fight than switch?

Image result for i'd rather fight than switch

Well, in Edwards’s case, it could be that he’d rather switch than fight.

The worst-kept secret (if, indeed it is still a secret to anyone) in the state is that Republican Attorney General Jeff Landry is in a four-year campaign mode for the governorship. And Landry takes verbal (and legal) swipes at Edwards at every opportunity in his blatant self-promotion.

With $3 million already in his campaign coffers, what better way to cut the attorney general off at the knees than to take away Landry’s fund-raising capabilities while adding to his own? As one political observer put it, “If Edwards switches to Republican, $3 million might be enough. Landry won’t be able to buy a Chik-fil-A sandwich. Edwards would be the beneficiary of that scenario because the Republican money would allow him to raise even more cash.”

There’s also this: as a Republican governor, he would be able to do what he could not as a Democrat: name his choice for Speaker of the House.

Another, a former state official, said, “The Democratic Party in Louisiana is gravely disappointing and I have to wonder the extent to which what is happening here is replicated in other states and at the national level, i. e., if Democrats in power have essentially given up on their own party.

“As you know, (State Rep.) Karen Carter Peterson and former U.S. Sen. Mary Landrieu tried to talk JBE out of even running (they wanted to support Dardenne) and it took him forever to get support from the national party in D.C.

“When is the last time our state party has come up with a viable candidate for anything? Was Hillary Clinton really the best the party could come up with as a POTUS candidate? Really? JBE got elected because the stars were aligned against Vitter—and look how long it took Republicans to essentially give up on Vitter. I had/have some hope for JBE. If he jumps ship, I guess the only place to go is independent which, to me, is like ceding all power to the Republicans and their führer.”

Another possible benefit to crossing over is Donald Trump. As vindictive, petulant, petty, vile and vicious as he is crazy, Trump would never hesitate to hit Louisiana where it hurts if it had a governor who insisted on partisan politics: the state treasury.

Louisiana already is the second most-reliant on federal funds of the 50 states. We are behind only Mississippi (but barely) in slopping at the federal trough. To see a cut in the influx of federal dollars for a variety of programs would only add to the already draconian budgetary woes facing the state.

On the con side, there is the obvious potential political fallout.

Politicians who change parties sometimes have a tough time of it, said a state employee who tends to keep his finger on the political pulse. “They are despised in the party they leave, and they are not trusted in the party they join. Buddy Roemer and John Connolly of Texas come to mind. However, Richard Shelby of Alabama changed from the Democratic Party to the GOP back in the mid-1990s, and he is still in the United States Senate.”

Finally, a Baton Rouge attorney said Edwards has been a difficult governor to figure out. “He is a real enigma and very disappointing, thus far, to me as a moderate conservative who voted for him. I cannot imagine how the progressives and the left feel at this point.

“I have been unable to figure out what his goals are,” the attorney, a former state employee, said. “He is obviously very indebted to many groups, such as the Sheriffs’ Association. That, it clearly appears to me, keeps him from doing many things that would make him more successful.”

As we said, one source wired into the Edwards camp says it just ain’t so but we’ve all heard promises and denials before from our elected officials that in the end, turned out to be just so much hot air. He already is pro-life and pro-gun so half the battle’s won if he decides to go over.

So, the question is this: is this a non-story story on a slow news day or something major in the offing? The rumors and the denials are equally strong at this juncture so we’ll wait and see.

Edwards spokesperson Richard Carbo, reached by LouisianaVoice, expressed shock at the report. “Let me check this out and I’ll get right back to you. Give me five minutes.”

Two hours later he replied by text message: “I can confirm that neither the governor nor his ‘intermediaries’ have been in contact with the state GOP about changing parties.”

Carbo quickly followed with a second text that accused the Louisiana Republican Party of planting the rumor: “First the state GOP floats this idea, then backtrack(s) when the governor shows no interest. The governor did not have a single conversation regarding political parties. He’s too busy cleaning up their (Republicans’) budget mess. Roger Villere should stick to negotiating illegal Iraqi oil deals. He’s better at that than party leadership.

“Unless there’s a source named, the onus is on them,” he said.

His reference to Villere’s “negotiating illegal Iraqi oil deals” was in reference an April 12, 2016, LouisianaVoice STORY about Villere’s and Lt. Gov. Billy Nungesser’s comedy of errors in being taken in by a con man promoting an oil deal with Iraq.

All of which just serves to support our advice: Never listen to what politicians say. In this case, observe instead, the governor’s action on the issues: taxes, education, higher education, etc. to get a true sense of which direction the political winds are blowing.

But above all else, remember that it’s the sincerity of the B.S. factor that trumps everything else (and no, that’s not a reference to anyone).

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Attorney General Jeff Landry is a busy man.

Since taking office a year ago, he apparently has personally made 35 arrests and announced nine other arrests by his office for such crimes as child pornography, elder fraud, Medicaid fraud, workers comp fraud, public corruption, and even for attempted murder.

I don’t know if he packs heat on those arrest sorties. Shoot, I didn’t even know the State Constitution gave him actual arrest powers. Just shows how little I know, I suppose.

Obviously, he was too busy fighting Gov. John Bel Edwards to take an active role in bringing those other nine to justice but his crack investigative teams were certainly up to the task.

Here are some sample headlines to stories released by his overworked public information office:

You have to admit that’s a pretty impressive laundry list of activity by Landry who, in addition to running hard for governor, must also dispense legal advice to various political subdivisions of the state as well as doling out consumer tips about how to ward off con artists and various scams.

Oh, I almost forgot: He also is personally rescuing New Orleans from its ongoing crime wave by busting a few individuals for pot possession. Apparently he’s been watching that classic 1936 film REEFER MADNESS that warned us about the homicidal/suicidal effects of Marijuana.

In case you don’t wish to watch the entire riveting movie, here is a short TRAILER to the film.

Here are some comments made by Landry in those news releases:

  • “Our office will leave no stone unturned in the pursuit of making our communities safer,” said General Landry. “We will do all that we legally can to bring child predators to justice.”
  • “Medicaid fraud robs much-needed services from our State’s vulnerable,” said Attorney General Jeff Landry.  “Our award-winning fraud detection and prevention unit will continue working hard to uncover, investigate, and arrest criminals who defraud Medicaid.”
  • “Our office is on the front lines investigating, arresting, and educating to help stop the awful occurrence of seniors being targeted and preyed upon by scammers,” said General Landry. “We want to help Louisiana’s people avoid falling victim to mortgage, contractor, charity and other types of frauds commonly perpetrated on senior citizens.”
  • “Our office will investigate and apprehend those who exploit our State’s children,” said General Landry. “We will continue to bring child predators to justice.”
  • “I have an unwavering commitment to protect our children, and my Cyber Crime Unit will keep working tirelessly to investigate and arrest those who have exploited children,” said General Landry. “We will continue to use all resources at our disposal to apprehend and prosecute child predators.”
  • “My office and I will do all that we legally can to protect our State’s children from predators,” said General Landry. “We will continue to work with all law enforcement partners to catch child predators and bring them to justice.”
  • “My Cyber Crime Unit works around the clock to investigate and arrest child predators,” said General Landry. “We remain focused on these efforts in an attempt to prevent innocent children from being exploited.”
  • “Our office will continue to be a model agency in arresting illegal criminals and stopping them from exploiting our State’s children,” said General Landry. “We will keep working closely with our local, state, and federal partners to make our streets safer by bringing child predators to justice.”

But here’s the best one, assuming you like cruel jokes:

“As Louisiana Attorney General, I will do all I can to end public corruption,” said General Landry. “The federal government has had to step in many times to help enforce these laws and protect the public. The federal government should not, and will not, be alone in this mission under my administration.”

“Under my watch, we will enforce state ethics laws and not just rely upon the federal government to take the lead on this issue,” continued General Landry. “The people of Louisiana should know government officials, elected and appointed, are accountable for their actions.”

You gotta love that, given how we thought all this time the State Ethics Commission was responsible for enforcing state ethics laws with those fines that are never collected.

From the New Orleans TIMES-PICAYUNE:

  • The task force made 11 arrests in New Orleans between October and December, his office said. Those arrests included six counts of marijuana possession, three counts of marijuana possession with intent to distribute, one count of illegal possession of a firearm and one count of illegal possession of a stolen vehicle. They also included four counts of producing and distributing fake drugs.
  • During the same three months, NOPD made a total 5,463 arrests, the department said.

Kinda going after the low-hanging fruit, aren’t you General? Not to mention pissing off the local law enforcement types with your headline-grabbing tactics for doing basically nothing.

And from the Baton Rouge MORNING ADVOCATE:

  • While he did not rule out a run for governor, Landry, 46, said he remains focused on his current job. He said he “despises people” who use one political office as a stepping-stone to the next. (Emphasis added.)

And of course, in the interest of being ever-vigilant on behalf of Louisiana’s citizens, he blocked John Bel Edwards when the governor attempted to retain some attorneys to sue oil and gas companies over the wreckage inflicted on the state’s coastal marshes. Granted, the attorneys Edwards wanted to hire were high-dollar but with one exception, they also had impressive success records in prior litigation against the oil industry.

But he said he “despises people” who use one political office as a stepping-stone to the next.

Didn’t a recent governor also insist he had the job he wanted—until after his re-election, when he openly and unabashedly chased an elusive Republican presidential nomination?

Between the ineptness of the Ethics Commission, the Office of Inspector General, and the Attorney General’s office, I’m reminded of the story about the baby chick questioning his mother about how he came to be:

BABY CHICK: Mom, was I born?

MOTHER HEN: No, you were hatched from an egg.

BABY CHICK: Was the egg born?

MOTHER HEN: No, the egg was laid.

BABY CHICK: Are people laid?

MOTHER HEN: Some are, but others are chicken.

The point here being maybe they’re all just a little chicken when it comes to enforcing ethics laws.

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Despite Inspector General Stephen Street’s impassioned plea for a stay of proceedings in the Corey DelaHoussaye defamation lawsuit against the Street and the Office of Inspector General (OIG) “for the sake of conserving judicial resources and preventing the waste of valuable taxpayer dollars,” it has been brought to the attention of LouisianaVoice that one of the biggest and most expensive law firms in Baton Rouge has been retained to defend OIG.

And apparently it’s not enough that the firm Taylor Porter was retained but the firm has assigned not one, not two, but three of its attorneys to the DelaHoussaye matter.

As evidenced by OIG’s MOTION TO STAY PROCEEDINGS filed on Nov. 15, Taylor Porter attorneys Preston Castille, Jr., Katia Bowman and Ne’Shira Millender signed off as “Special Assistant Attorney General Counsel to OIG Defendants.”

Talking about using a baseball bat to swat a gnat…

Not that DelaHoussaye is a gnat by any means. He appears to have a pretty solid case against Street and OIG, given that his home was raided by Street on the basis of a search warrant the OIG has no authority to issue and based on the fact that Street initiated the prosecution of DelaHoussaye even though DelaHoussaye did not work for any state agency.

It’s also telling that by the attorneys signing off as “Special Assistant Attorney General” counsels for OIG it is implicit that the Taylor Porter contract was issued by the Office of the Attorney General.

You may remember how Attorney Jeff Landry got his drawers in a wad over Gov. John Bel Edwards’ appointment of attorneys to represent the state in litigation against oil companies for their contribution to the destruction of Louisiana’s coast. Landry just flat refused to sign off on the contracts and Edwards was forced to cancel their appointments.

That’s because State law gives the attorney general the final say-so in approving the appointment of all lawyers who represent the state.

So what’s wrong with that? Not much except that LIZ MURRILL is Chief of the Attorney General’s Civil Division and as such has direct supervision over Taylor Porter.

And her husband, JOHN MURRILL, just happens to be a PARTNER at Taylor Porter.

Now I’m not an attorney but I did stay at a Holiday Inn Express once and it appears to me that the Taylor Porter contract comes awfully close to a violation of the STATE ETHICS CODE which says, in part:

  • GENERAL PROHIBITIONS (R.S. 42:1111 – 1121): For public servants, other than legislators or appointed members of boards and commission, bidding on or entering into any contract, subcontract or other transaction under the supervision or jurisdiction of the public servant’s agency. This restriction also applies to the immediate family members of the public servant and to legal entities in which the public servant and/or his family members own an interest in excess of 25 percent. (Emphasis added)

Granted, John Murrill doesn’t “own” 25 percent of Taylor Porter but he is a partner in the firm.

And the State Ethics Law covers that little contingency when it goes on to say:

  • 1112 – Participation by a public servant in a transaction involving the governmental entity in which any of the following persons have a substantial economic interest: (1) the public servant; (2) any member of his immediate family; (3) any person in which he has an ownership interest that is greater than the interest of a general class; (4) any person of which he is an officer, director, trustee, partner, or employee; (5) any person with whom he is negotiating or has an arrangement concerning prospective employment; (6) any person who is indebted to him or is a party to an existing contract with him and by reason thereof is in a position to affect directly his economic interests. (Emphasis added)

Does Taylor Porter and thus John Murrill have an “economic interest” through contracts with the Attorney General’s Civil Division?

Well, consider this: Taylor Porter, from August 2015 through November 2016, was approved for 13 contracts totaling more than $2 million, about $160,000 per contract on average.

And that didn’t even include Taylor Porter’s contract to defend OIG. That contract has yet to be entered on the state’s online LaTrac program, which lists contracts with every state agency.

Perhaps there is a perfectly logical explanation for all of this. If so, we’d love to hear it.

Otherwise, we’ll just refer to the immortal words of the late C.B. Forgotston:

“You can’t make this stuff up.”

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This is a story with no readily apparent good guys.

It’s a story about charges of theft of heavy equipment.

It’s a story about thousands of dollars floating around unaccounted for by public officials.

It’s the story of the attorney general’s office abruptly halting a confrontational deposition.

It’s a story about a Baton Rouge judge having the decency and courage to impose (finally) a stiff financial penalty against a state agency over the agency’s failure to complete the deposition or to produce legally required public records.

It’s a story of how the superintendent of State Police was unable to account for the receipt of two checks totaling nearly $150,000 and how the state attorney general’s office and its former rogue investigator wound up with egg all over their already questionable reputations.

And, of course, it’s a story of how the taxpayer and not the public official responsible ultimately will bear the cost of those penalties.

It all began in May 2014 with the indictment of Joseph Palermo of Sulphur on five counts of possession of stolen things, destruction of serial numbers and forgery.

http://www.kplctv.com/story/25298149/five-count-indictment-unsealed-against-sulphur-businessman

Palermo previously got crossways with state police over operation of casinos in Calcasieu Parish and he settled that civil matter back in 1998 but prosecutors, apparently still nursing a grudge over the casino gambit, brought up the 1998 trouble in connection with his more recent problems. Things have a way of playing out that way for some people.

In February 2015, he pleaded guilty to misdemeanor charges of receiving “ill-gotten gains” in a plea bargain in which he agreed to paying civil penalties of $1.2 million over three years with expenses to the Calcasieu Parish District Attorney’s office coming off the top. After expenses, the $400,000 per year was to be divided equally between the Calcasieu DA, the attorney general and State Police ($133,333.34 each). An additional $14,792.55 was what remained after the district attorney’s expenses were paid.

Identical checks of $14,792.55 and $133,333.34 were then issued to Louisiana State Police and the attorney general’s office. State Police, however, initially had no record of receipt of the funds.

Moreover, neither of the checks to the attorney general’s office was ever negotiated and it took more than a little effort to get State Police Superintendent Mike Edmonson to acknowledge his office had received the money. State Police’s financial section has no record of the checks, nor is there any record of the checks having been deposited in state police accounts.

In February of this year, Palermo began efforts to obtain certain records from the attorney general’s office, specifically those pertaining to the criminal investigation of his case by Scott Bailey, then employed as an investigator for the attorney general’s office.

Bailey, in addition to being a central figure in the botched CNSI investigation of a couple of years back, holds the dubious distinction of being the investigator who photographed Jimmy Swaggart exiting his infamous rendezvous with the hooker in that seedy Metairie motel three decades ago. (Some claims to fame you just want to hang onto for whatever reasons).

Bailey resigned from the attorney general’s office the very day he was directed to provide all his time management records for all his investigations.

The records by Palermo from the attorney general were insufficient to meet the parameters of his request, so he tried again and this time he was met with a response that the records, after all, were exempt from public disclosure despite the investigation of Palermo having been completed for more than a year.

The legal back and forth jockeying continued with two separate legal actions by Palermo—one for public records and the other to force deposit of the checks into the court’s registry pending a determination of to whom the money actually belonged—being consolidated into a single lawsuit. Finally, it culminated in a deposition scheduled for October 27 in Lake Charles.

Alas, it was not to be.

State attorney Chester Cedars abruptly called an end to the deposition only a few minutes into the proceedings, acknowledging he was doing so at his own peril.

On Monday, 19th Judicial District Judge Don Johnson of Baton Rouge came down hard on the attorney general’s office and we would be less than honest if we didn’t admit we are delighted (so much for any pretense of objectivity).

It was such a beautiful order, we’re reproducing some of the wording here:

“Judgment is hereby entered herein in favor of Joseph R. Palermo, Jr. and against Jeff Landry, in his official capacity as the Attorney General of Louisiana, in the amount of twenty-five thousand and no/100 dollars ($25,000.00) payable within 30 days from November 14, 2016.”

Here is the judgment in its entirety.

One courtroom observer speculated that Cedars would likely take writs to the Louisiana Supreme Court on the matter of the amount of the fine.

That’s unlikely, however, because of Cedars’s own admission at the time he suspended Bailey’s deposition.

It is part of the transcript of the deposition and Cedars tells opposing counsel Christopher Whittington, “…I do so at the defendant’s peril. I fully understand that if I’m incorrect in the assertions and the law as I understand it, or in the facts as I understand it, then we are going to have to pay the appropriate sanctions.”

WHITTINGTON: “Okay. And we will move for those sanctions pursuant to Article 1469.”

http://www.laboards-commissions.com/MCBD.pdf

You have to wonder how that little on-the-record exchange and Judge Johnson’s ensuing fine are going to sit with Cedars’s boss, Attorney General Jeff Landry (Of course Landry has his own problems, having recently dodged service on a subpoena in the ongoing litigation with Gov. John Bel Edwards over the governor’s non-discriminatory executive order).

Now, if we can just find out what happened to those two checks after they arrived at State Police headquarters…

(Special thanks to Robert Burns for scurrying around and digging up valuable court documents for this story.)

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