- Associated Press - Saturday, May 17, 2014

OPELIKA, Ala. (AP) - State prosecutors in Rep. Barry Moore’s perjury case are asking a judge to block a subpoena seeking documents related to the appointment of an acting attorney general in the investigation.

Attorneys for the Enterprise Republican are seeking records that show any recusal by Alabama Attorney General Luther Strange from the investigation and the reasons why Strange stepped aside. They are also seeking documents about his appointment of former St. Clair County District Attorney W. Van Davis as acting attorney general to oversee the case.

Defense attorney Bill Baxley said Friday the case against Moore must be dismissed if it was done without proper authority.

Prosecutors said the subpoena is a fishing expedition and Moore has no evidence that prosecutors aren’t acting with proper authority.

The issue will be discussed at a court hearing in Moore’s case Tuesday in Opelika. Moore is charged with lying to a special Lee County grand jury that was convened by the attorney general’s office to investigate possible government corruption. The grand jury has met off and on since August 2013 and was back in session in Opelika during the last few days, according to court documents. Strange has said he stepped aside from the case and appointed Davis to oversee it, but he has not said why.

In the legal battle over the subpoena from the defense, prosecutors wrote in court papers, “The subpoena is improper because it is being used as a discovery device, which is not permitted by the Alabama Rules of Criminal Procedure.”

“All the subpoena is asking for is what their proper authority is to be in that grand jury room. It makes me highly suspicious they didn’t have any proper authority. If that’s true then everything that grand jury has done is illegal,” Baxley said.

Baxley likened the situation to a police officer flashing a badge or showing a copy of a search warrant.

“They’ve got to identify themselves and show their authority. The same applies to the attorney general’s office. You’ve got to show that the people who go in the grand jury room have a legal authority to be in there,” Baxley said.

Baxley, a former Alabama attorney general, said when he stepped aside from an investigation, he filed paperwork with the court explaining the decision.

Attorneys general step aside from investigations and get someone else to handle them when they have a possible conflict, such as having done legal work for someone in the investigation prior to becoming attorney general. A current or former district attorney is usually appointed to handle the case.

The charges against Moore accuse him of falsely telling the Lee County grand jury that he had not told his primary election opponent, Josh Pipkin, that Speaker of the House Mike Hubbard had threatened to harm an economic development project in Coffee County if Pipkin refused to drop out of the primary race. Pipkin had recorded a call with Moore, and prosecutors had the recording.

Moore and Pipkin face off in the Republican primary June 3.

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