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Capitol View Commentary: Friday, February 23, 2018

Posted at 3:19 PM, Feb 23, 2018
and last updated 2018-02-23 16:19:59-05

CAPITOL VIEW

By Pat Nolan, Senior Vice President, DVL Seigenthaler Public Relations, a Finn Partners Company

February 23, 2018

THIS WEEK THINGS GOT EVEN WORSE FOR MAYOR BARRY; TAXVILLE; A “REAL” GUBERNATORIAL POLL; WHAT DOES SENATOR BOB CORKER DO?; INSIDE POLITICS LOOKS AT GUN VIOLENCE;

THIS WEEK THINGS GOT EVEN WORSE FOR MAYOR BARRY

It was not a good week at all for Mayor Megan Barry. She continues to deal with a Courthouse scandal that began January 31 when she admitted having a nearly two- year long extra marital affair with her bodyguard, retired Metro Police Sgt. Rob Forrest.

The new bombshells started exploding Thursday

Based on investigating Sgt. Forrest’s Metro smart phone, The Tennessee Bureau of Investigation says it has found nude photos of a woman.

It also found 260 deleted text messages along with other deleted files.

A court order was then sought by the Tennessee Bureau of Investigation (TBI).

The effort was to force Mayor Megan Barry to turn over her personal smart phone after she refused to provide her phone’s pass code.

The TBI tells the court the information it is seeking is because it thinks there is probably cause of “criminal activity.”

The court grants the search warrant to seize the phone.

After at first resisting giving up the password, the Mayor’s personal lawyer did so Friday, but not without strongly complaining about how the TBI has handled this process. Meanwhile, the Mayor’s office issued a call for Nashville District Attorney Glenn Funk to step aside from the probe (he asked the TBI to conduct it). The Mayor’s office says Funk has a conflict of interest.

You can read more details about the TBI court documents in this TENNESSEAN story. If this account is accurate in reporting what the TBI says it has found, things could be headed to get even worse.

Phil Williams of NEWSCHANNEL5 INVESTIGATES also had a new story about the affair this week. It focuses on whether taxpayer money was misused to aid the affair. The story has a rather bizarre twist to it, like something out a gothic or Victorian-era novel. It seems in the early daylight hours, the Mayor and her bodyguard have visited the City Cemetery along 4th Avenue South. It’s an historic setting where many of the city’s early settlers and mayors are buried.

As someone’s who been struggling to hold on to her office, Mayor Barry for the last three weeks has been performing a political high wire act, without a net, to weather this scandal. Following this week’s developments, that wire seems about to break, leaving her hurtling into the political abyss, or to maybe an even worse fate, if there is anything to these possible criminal charges.

Will she resign? She continues to say she will not, even though obviously, the pressure for her to exit is likely rising in the wake of these embarrassing revelations.

The TBI/ smart phone development is very important. The TBI court filing would seem to indicate the Mayor may have not been truthful. Since the affair became public, the Mayor has repeatedly claimed she has done nothing wrong, has nothing to hide and, most importantly, is fully cooperating to provide any and all information she or the city has that might be requested by the multi-investigations that are underway, including the TBI’s inquiry.

The Mayor continues to insists she has been truthful, and fully cooperative although she balked, at first, to provide the passcode to get into her phone, saying it was too invasive.

Here’s a statement her office her office released Thursday evening:

“The allegations of (nude) photos taken of myself are very troubling and infuriating if true. While I have not seen the photos in question, if they were of me, they were taken without my knowledge or permission and a complete invasion of my privacy.

“Nothing in the affidavits released today (Thursday), which should have been sealed until the conclusion of this investigation, indicates that I have committed any actions that violate the law. If any violations of the law occurred, they were in violating my personal rights.

“We will continue to cooperate with the ongoing TBI investigation, but the release of this affidavit to the media in an attempt to politically damage or embarrass me is an example of why I will continue to protect my personal rights in this process.”

Indeed, the Mayor continued to counterattack on Friday morning issuing a news release saying Nashville District Attorney Glenn Funk (who ordered the TBI probe) should recuse himself from the investigation. The Mayor cites comments from Lucian Para, a Memphis attorney and the current chair of the Tennessee Bar Association. Para is also a legal ethics specialist.

Quoting from the news release from the Mayor’s office:

In his opinion, Pera states, “Tennessee legal ethics rules prohibit a district attorney general or any other Tennessee prosecutor from taking on any matter where there is a significant risk that their independent professional judgment or impartiality will be materially limited by their responsibilities to another client, a former client or a third person or by a personal interest.”

Pera continues that in his opinion, “General Funk’s official responsibility and interest in obtaining Metro funding for his office creates a conflict of interest for him in supervising or participating in an investigation” of Mayor Barry. “This conclusion is based on my view that there is a significant risk that

General Funk’s independent professional judgment or impartiality will be materially limited by his obligations and interests concerning obtaining funding from Metro for his office’s operations.”

Pera also says there is precedent in Tennessee for such a recusal:

“In 2008, District Attorney General Randy Nichols recused himself from an investigation into former Knox County Mayor Mike Ragsdale, handing over control of the investigation to then Tennessee Attorney General Bob Cooper. That investigation ultimately found no grounds for criminal charges against Mayor Ragsdale.”

The Mayor’s personal attorney, former U.S. Attorney Jerry Martin has also been on the attack. In a statement issued Friday morning, he said in part:

“We were in the process of preparing to turn over her phone when the TBI, presumably at the direction of the District Attorney, sought a search warrant. This tactic was surprising since the evening before the search warrant was issued, I communicated our willingness to turn over the phone. However, by seeking the phone via a search warrant the authorities were ultimately afforded the opportunity for the unorthodox release of the underlying affidavit. While it may be common for search warrants themselves to be made public, the underlying affidavits are typically not returned and made public at this stage in an investigation.

On February 20, 2018, the TBI called me and formally requested the passcode for the Mayor’s personal phone. I requested the underlying affidavit that had been submitted in support of the search warrant to better understand the allegations but this request was denied. I was told by the TBI that this was up to the District Attorney but that it was not customary to release these affidavits at this stage of the investigation. Shortly thereafter, the affidavits were for some reason made public.

These facts raise serious concerns about the course and conduct of this investigation.

The Mayor has provided the TBI with thousands of pages of documents at its request. The Mayor was in the process of turning over her personal phone before it was unilaterally seized. The Mayor has provided the TBI with her passcode to her personal phone. Simply put, the Mayor continues to cooperate with the investigation and knows eventually she will be cleared of any criminal wrongdoing.”

Well, what a mess this is.

Will the Mayor’s and her lawyer’s pushback against the TBI and General Funk help her cause with the public? Is her defense too legally complicated to enlist the public’s support, especially measuring it against scandalous charges of nude photos and hundreds of deleted text messages? Can she successfully claim she is the victim here?

Based on the TBI’s allegations, the photos were taken during an out of town trip the Mayor and her security chief took alone. The photos, which came from the Sgt.’s phone, were taken during a time of day he claimed as overtime pay. What else might a TBI examination of the Mayor’s personal phone confirm or uncover about any misuse of public dollars and any mayoral involvement?

Will the subject of the Mayor resigning, and its timing, become a bargaining chip with the TBI and other investigators? Will it be tied to all the other probes (a Metro Council Special Committee and the city’s Ethical Standards Board) be being brought to a close if she steps down? If such talks occur, will DA Funk go along? What about the special Council committee and the Ethical Standards Board?

There are lots of questions to ask….and await any answers.

Earlier past week, for the first time, there was a grassroots effort to demand the Mayor resign, which she refuses to do. The resignation effort began with yard signs (reading RESIGN NOW MEGAN BARRY) . They popped up across town last weekend, along with a Facebook page.

Then organizers, whose leadership, for the most part, seems to be made up of folks who have been in opposition to the Mayor on just about every issue in past (the AMP, the Fairgrounds, the new MLS soccer stadium, now the transit plan) called for a rally late Tuesday afternoon at the Metro Courthouse (right outside her office window) to demand she step down.

Only about 70 folks showed up, a small “but spirited crowd” reported THE TENNESSEAN. The Mayor wasn’t there either as she kept up her busy schedule across the community.

What does the grassroots effort mean? Well, on Tuesday in terms of being a political force, it looked more like a small sprinkle not a Category 5 hurricane. In other words, not much.

But with the more recent revelations that came to light at the end of this week, the force of a resignation push is likely getting stronger. I suspect a redo of a Courthouse rally might draw a bigger crowd now and pack a much bigger political punch, especially if the organizing group can show new out -front involvement and leadership from prominent community and political leaders who have supported Mayor Barry in the past.

And so the plot thickens and the pressure builds.

TAXVILLE

The main opposition force opposing the Mayor’s transit plan, No Tax 4 Tracks, went on the air this week with ads opposing the proposal. The group says the plan will give the city among the highest sales tax rates in the nation to build a light rail system that is old technology and will do nothing to address the city’s growing traffic congestion.

You can see the “Taxville” ad here.

The transit opponents seem thrilled they put their ads up before the supporters of transit did. They seemed to be almost celebrating in one of their daily e-mail updates sent to supporters:

“Either they are cash-strapped, deflecting from their strategy or they’re stupid.

And we know they aren’t stupid.

Our ad bothers them a lot. It’s working. And we got to voters before they did.”

Really? It’s only a TV buy lasting for a week to ten days, and while that’s not cheap (am estimated $100,000) to have any lasting impact with voters there better be a continued follow up with more ads on the air leading up to the May 1st vote.

The pro-transit forces say they are not concerned. “This is not going to be a media campaign,” said Transit for Nashville’s Walter Searcy. “We’ll have some media, but media is not going to be the ‘be all end all’ in this race. It’s going to be reaching the voters directly in their homes.”

Searcy said “Transit for Nashville” will also use radio ads in the months ahead of the vote.

But I’ll bet they’ll do TV ads too…and maybe sooner than expected.

One other noteworthy development for the No Tax 4 Tracks group. Lee Beaman, a long time Nashville car dealer and transit opponent, has stepped down as the coalition's treasurer, with Waymon Tipton, head of wealth management for Nashville-based Avondale Partners, replacing him.

Beaman was one of the first high profile individuals in the community to join the transit opposition. As for why the change? No Tax 4 Tracks spokesman Jeff Eller said in a statement: "Campaigns evolve. Lee thought he could be helpful in other ways other than being treasurer."

Indeed, Beaman can still help with raising funds while lowering his car dealer profile, a business that is an easy target to attack as being anti-transit. The pro-transit forces have already tried to label the No Tax 4 Tracks group as “The Gang of No” because of the previous opposition by Beaman and others to previous local transit efforts like the AMP. Beaman also has a relationship with the conservative Koch brothers who are likely not well received in a blue-leaning city.

A “REAL” GUBERNATORIAL POLL

One of my pet peeves this political year is the dearth of polling in the governor’s race.

Sure, there have been surveys measuring the name recognition numbers of the candidates but almost nothing on “who will you be voting for” polls.

Now there is one.

And while the survey confirms one of my suspicions on why no one has been leaking or publishing any poll findings, it raises other questions.

It was THE TENNESSEE JOURNAL which first obtained this new poll. According to THE NASHVILLE POST, it was “conducted on behalf of Franklin businessman Bill Lee’s campaign by (respected pollster) Whit Ayres of North Star Opinion Research. The results show 25 percent of likely Republican voters favor Knoxville businessman Randy Boyd, 22 percent favor U.S. Rep. Diane Black and 18 percent favor Lee.”

“The poll also found 30 percent of likely Republican voters were undecided on the race and 4 percent favor Speaker of the House Beth Harwell. A poll released in December found 5-percent support for Lee.”

Adds Whit Ayres in the NASHVILLE POST article:

“These findings mean that the gubernatorial contest is wide open, a tight three-way race at the moment,” the pollster said. “Moreover, Bill Lee has lots of room to grow as the candidate close to the leaders who is least well-known.”

Lee holds 43-percent name recognition among likely Republican primary voters while 73 percent of voters know Black and 59 percent are familiar with Boyd.”

Is the poll accurate? Well I am sure Speaker Harwell’s campaign thinks not. All campaign polls are suspect on their face just because of where they originate. Maybe downplaying Harwell’s chances are one reason this internal campaign poll made the light of day, along with showing a very quick rise in support for Lee, whose campaign paid for the survey.

As for the other poll findings, it confirmed my suspicion that the overall leader in the governor’s race is still undecided, at nearly a third of the electorate surveyed. And why not, it’s only late February.

It will be up to Harwell to prove her strength in this four-way GOP primary race. Maybe that effort began this week with a statewide TV campaign that touts her record of leadership in the Tennessee General Assembly.

But the ad raises some questions. As we mentioned in last week’s Capitol View column, it’s paid for by an outside group, Tennesseans for Good State Government, not by her campaign.

And that has generated questions and news stories other than just about the ad itself, in which Harwell not only appears, she speaks (but not about running for governor which is never mentioned).

There are now two ethics complaints filed against Harwell, including challenging the legality of her use of her PAC in the campaign. The Speaker’s campaign says she has done nothing wrong.

By the way, Speaker Harwell remains the only GOP gubernatorial candidate who is not running TV ads paid for by her campaign.

WHAT DOES SENATOR BOB CORKER DO?

After over a week of speculation is Tennessee Senator Bob Corker dropping his retirement plans to seek re-election to a third six-year term? That looked a real possibility late last Friday (after my column was filed) when former congressman and GOP Senate candidate Stephen Fincher dropped out of the race and endorsed Corker.

But if that was the Senator’s cue to enter the field, he hasn’t yet, leaving Congressman Marsha Blackburn as the only major candidate left in the GOP primary field. Blackburn’s allies were quick to bolster her strong position by producing a poll that shows she would cream the incumbent if he dares to enter the field….

Reports THE NASHVILLE POST:

“A newly released survey shows U.S. Rep. Marsha Blackburn beating current Sen. Bob Corker in a hypothetical primary matchup by a wide margin.

The poll, conducted by Republican polling firm WPAi on behalf of the pro-Trump super PAC Committee to Defend the President, had Blackburn with 40 percent of the vote, Corker with 22 percent and former Rep. Stephen Fincher with 4 percent in a three-way matchup.

In a two-way contest, Blackburn beats Corker 55 percent to 26 percent. In the three-way race, 27 percent of likely voters were undecided, while only 19 percent were in the two-way matchup.

“Whether establishment darling Bob Corker decides to run or not, Marsha Blackburn is poised to become Tennessee’s next senator — and defend the Trump agenda in the Senate,” committee spokesperson Amanda Head said in a press release. “If Corker throws his ‘Never Trump’ hat into the ring, the Committee will spend $1 million in the primary to expose his betrayal of conservative values. We’re coming for you, Bob.”

Head said if Corker enters the race, the PAC will spend at least $1 million in the primary on television and digital ads, as well as door-knocking, “to defend Rep. Blackburn’s record and expose Sen. Corker’s anti-Trump agenda.”

The poll surveyed 500 likely general election voters, 400 of whom were likely Republican primary voters. Just over 30 percent were surveyed on their cell phone. Only the likely Republican voters were asked for whom they would vote in the primary.”

Of course, since the pro-Trump group was already out in the field, it decided to take a voter survey, head to head, between both Blackburn and Corker as well as versus Senate Democratic candidate and former Governor Phil Bredesen.

Again, reports NASHVILLE POST:

“The poll also asked voters who they would support in a general election matchup between both Blackburn and former Gov. Phil Bredesen, the only Democrat in the race, and between Corker and Bredesen. Among all likely voters, Blackburn beats Bredesen 44 percent to 39 percent, but Bredesen beats Corker 44 percent to 35 percent — not exactly the result you’d expect to see in a heavily weighted Republican poll.”

Or is this an unexpected result? After all a pro-Trump group wants to discredit Corker as a candidate. What better way to do that than showing him losing to a Democrat. Of course, the pro-Trump survey may have made Bredesen look stronger than it would like. Again, from THE POST:

“Bredesen has improved his standing in the pro-Trump group’s poll since December, when the same pollster found the former governor down 34-43 against Blackburn. The new findings place Bredesen just outside the 4.4-percent margin of error cited in the poll. Voters undecided between Blackburn and Bredesen dropped from 23 to 17 percent since December, according to the poll.

But the fact is, it was a heavily weighted poll, and the Committee to Defend the President has endorsed Blackburn, so take these results with a grain of salt. If Corker does run, it’s possible he’d lose the primary — which is why there has been pressure on Blackburn to drop out — but it is highly unlikely he’d lose

the primary by anywhere close to 30 percentage points. And other leaked polling has shown a much closer race between Blackburn and Bredesen, including some that shows the former governor winning.”

For now, Blackburn is pushing hard to show the strength and depth of her primary support, releasing endorsements of 18 GOP State Senators, a majority of the entire body and a super majority of the Republican members of the Senate. At first, among the Republican Senate leadership, Lt. Governor Randy McNally was listed as endorsing Blackburn although now he has posted a statement on Facebook that he is supporting. Senate Majority Leader Mark Norris has not endorsed. But he may be in a delicate position, since he is awaiting action by the full U.S. Senate to confirm his nomination by President Donald Trump to become a federal district judge. Endorsing a candidate to become a Senator would likely be awkward.

Along with Lt. Governor McNally, here are other GOP state Senators endorsing Blackburn.

Sen. Paul Bailey, Sparta

Sen. Mike Bell, Riceville

Sen. Janice Bowling, Tullahoma

Sen. Rusty Crowe Johnson City

Sen. Mark Green, Clarksville

Sen. Dolores Gresham, Somerville

Sen. Ferrell Haile, Gallatin

Sen. Joey Hensley, Hohenwald

Sen. Jack Johnson, Franklin

Sen. Brian Kelsey, Germantown

Sen. Bill Ketron, Murfreesboro

Sen. Jon Lundberg, Bristol

Sen. Becky Duncan Massey, Knoxville

Sen. Frank Niceley, Strawberry Plains

Sen. Mark Pody, Lebanon

Sen. Kerry Roberts, Springfield

Sen. John Stevens, Huntingdon

Sen. Ken Yager, Kingston

Unlike the governor’s race there have already been a raft of polls in the Senate campaign. I’d say take all of them with a big grain of salt. Look and see who’s paying for the polls and what messages are being sent beyond who is allegedly on top.

The qualifying deadline to run for Senate is April 5, which is still several weeks away. But with each passing day, Senator Corker still has a big decision to make and announce about his future. As of mid-Friday afternoon (February 23) as this column is being finished, that decision still remains unannounced.

INSIDE POLITICS LOOKS AT GUN VIOLENCE

Following the latest mass shooting at a high school in South Florida that left 17 students dead, the nation’s long simmering debate over the regulation of firearms has been rekindled.

This week on INSIDE POLITICS we begin a look at both sides of the debate.

Our guest is Beth Joslin Roth, the Executive and Policy Director of the Safe Tennessee Project.

Safe Tennessee says it is “a community of concerned citizens and academicians who want to address some of the pressing issues regarding gun violence in Tennessee.”

The group says it supports the Second amendment, but also advocates for “common-sense” measures that they say would lessen rates of gun injury and death in our state without infringing on anyone’s rights.

To get a different point of view on the issue, next week John Harris of the Tennessee Firearms Association will be our guest.

INSIDE POLITICS airs several times each weekend on NEWSCHANNEL5 PLUS. Those times include:

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