The Slough of Despond

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The Slough of Despond

Now-suspended Alabama Chief Justice Roy Moore. (Photo: Getty)

Deliver me from your cold phlegmatic preachers, politicians, friends, lovers and husbands. 
— Abigail Adams, Letter to John Adams

Alabama is back with us. Its arrival preceded by just one day the news that thanks to Donald Trump’s sophistication, he had probably paid no taxes for many years. As Rudolph Giuliani explained it, “The man’s a genius. He knows how to operate the tax code for the people that he’s serving.” The people he is serving do not include the people who were serving Mr. Trump as workers in his construction projects whom he repeatedly stiffed by not paying them what they were owed, and who, thanks to Mr. Trump’s clever use of the bankruptcy laws, were left holding an empty bag of compensation while Mr. Trump was left holding a bag full of tax benefits. But never mind all that. Let’s go back to Alabama where it’s two for three and that’s just as exciting as what’s happening in the presidential campaign.

Readers who follow events in Alabama will recall that all three of what might be called its “top dogs,” were in hot water because of their conduct as elected officials. Two of them have now been happily dispatched (although one of them intends to appeal) and the third is in a holding pattern as lawyers quibble over how to proceed. Of the three, perhaps the most interesting is Roy Moore, the now-suspended Chief Justice of the Alabama Supreme Court.

Chief Justice Moore is the most interesting because he is probably the only Chief Justice in Alabama who has been a repeat customer of the Alabama Court of the Judiciary. Each of his appearance before that body has resulted in his not being permitted to continue to serve as Chief Justice although the manner in which that result was achieved differed in the two cases. When he became the Chief Justice of the Alabama Supreme Court the first time, Chief Justice Moore caused a 5,280-pound granite monument to the Ten Commandments to be installed in the central rotunda of the state judicial building. When the 11th Circuit Court of Appeals ordered him to have it removed, he refused. As a result, instead of the monument being removed from the rotunda, Justice Moore was removed from the bench by the Alabama Court of the Judiciary.

In 2012 Mr. Moore was re-elected as Chief Justice and, in 2016, the Court of the Judiciary suspended him. On this occasion he was suspended for ordering lower court judges in Alabama to ignore federal court rulings permitting same-sex marriages, and for instructing probate judges to refuse to issue marriage licenses to same sex couples. Using the sort of nicety that only lawyers can appreciate, the Alabama Court of the Judiciary did not remove Justice Moore from office following his second appearance since removal required a unanimous vote of the members of the Court and the members of the Court were not unanimous in voting for his removal. Instead, it suspended him without pay until his term ends in 2019. (Alabamans needn’t fear another resurrection of the Chief. In 2019 he will be too old to run again.)

Meanwhile, back at the trial court level in Alabama, we have the conviction of the former Alabama House Speaker, Mike Hubbard. He, it will be recalled, was first elected to the House in Alabama in 2010, vowing to clean up the state legislature. In a book he wrote following his election, he said: “Ethics was a subject that set Republicans apart from the Democrats.” That assertion was made because of pre-election scandals and indictments involving Democrats. Mr. Hubbard is no longer the Speaker of the Alabama House. In a good news-bad news kind of way, in June 2016 he was convicted of only 12 counts of corruption instead of the 23 counts with which he had been charged. He was sentenced to four years in prison and given $210,000 in fines. He will, of course, appeal. That leaves us, as we consider Alabama, with Governor Robert Bentley. He is in the midst of a process that may result in impeachment proceedings. His offenses involve the kind of conduct that has suddenly become one of the hot issues of the presidential campaign-infidelity.

In the presidential campaign, the question Mr. Trump has repeatedly suggested voters should consider, in comparing himself and Hillary Clinton, is whether it is a greater offense to (a) engage in sexual misconduct with someone other than a spouse while married or (b) be a spouse who is cheated on. Since Mr. Trump is critical of Secretary Clinton’s response to the infidelity of her husband, it would be helpful to learn of the responses of Mr. Trump’s betrayed spouses to his acts of infidelity. That would be helpful to know since, as in all things Trumpian, one can be confident that the responses of his former spouses to his repeated acts of infidelity represent the gold standard in dealing with unfaithful spouses. But I digress.

In Alabama, the House Judiciary Committee is conducting an investigation to determine whether impeachment proceedings against the governor are warranted because the governor has been accused of having an affair with a staffer BEFORE he was divorced. The outcome of the investigation will not be known until after the presidential election is past. However it comes out, Alabamans may, for good reason, feel that their state has fallen into the Slough of Despond. They are not alone. Thanks to the campaign for president, the entire country has joined them in the Slough.

Christopher Brauchli

Christopher Brauchli

Christopher Brauchli is a columnist and lawyer known nationally for his work. He is a graduate of Harvard University and the University of Colorado School of Law where he served on the Board of Editors of the Rocky Mountain Law Review. He can be emailed at brauchli.56@post.harvard.edu. For political commentary see his web page at http://humanraceandothersports.com

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