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A bust of Nathan Bedford Forrest is displayed in the Tennessee State Capitol Thursday, Aug. 17, 2017, in Nashville, Tenn. (AP Photo/Mark Humphrey)

NASHVILLE — Armed with a new legal opinion, Tennessee Lt. Gov. Randy McNally and House Speaker Cameron Sexton plan to mount a final charge against Gov. Bill Lee's plan to remove the bronze bust of Confederate Gen. Nathan Bedford Forrest from the state Capitol building.

State Attorney General Herbert Slatery this week responded to the two Republicans speakers' February request for his legal assessment on Lee's effort to relocate the bust to the Tennessee State Museum. The bust was placed on the Capitol's second floor outside the House and Senate chambers in 1978 and has been the target of protests ever since.

In a six-page legal opinion, Slatery, who has departed from his predecessors' decadeslong policy and rarely issues public legal opinions on grounds they might be used in lawsuits, cited different sections of state code.

He opined both Lee and the two speakers had legal grounds for their respective interpretations on whether the Forrest bust removal effort should have come before the seven-member State Building Commission on which both speakers sit.

McNally and Sexton argue the issue should have come before the panel after the plan from Lee, a Republican, won initial approval from the State Capitol Commission in 2020 and before it went before the Tennessee Historical Commission on March 8.

Instead, Lee ignored the speakers' request, bypassing the State Building Commission and sending the removal issue directly to the Historical Commission, which he had earlier filled with new appointees, including more members inclined to remove the statue. Historical Commission members approved the bust's relocation to the state museum in a 25-1 vote.

After reviewing Slatery's opinion, released Wednesday, McNally told reporters Thursday "my observation was that they believe it's probably best to go ahead and go through the Building Commission."

Besides the two speakers, other Building Commission members are the governor, his finance commissioner Butch Eley and the state's three constitutional officers — Secretary of State Tre Hargett, Treasurer David Lillard and Comptroller Jason Mumpower. All three constitutional officers are elected to their posts by legislators.

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Slatery opinion

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When the bust removal went before State Capitol Commission last year, all three constitutional officers sided with Lee on removal, among them then-Comptroller Justin Wilson. Wilson retired in January and has been replaced by Mumpower. It's not clear what Mumpower's views on the issue are.

However, even if Mumpower were to join McNally and Sexton in voting against the bust's removal, the speakers would need the necessary fourth vote from both Hargett and Lillard.

Asked whether he thought the State Building Commission would likely approve the bust's removal given Lillard and Hargett's previous stance, McNally said, "Well, I never bet on what's going to pass and what's not, or who is going to vote which way. But here you probably have a pretty good assessment of the situation."

And on the question of what happens if the State Building Commission approves the Forrest bust removal — the action would also remove second-floor busts of Union Navy Admiral David Farragut and U.S. Admiral Albert Gleaves — McNally said, "Well, I'll cross that bridge when I get to it."

In a statement, Sexton described Slatery's office as having taken a "middle-of-the-road approach" in the Forrest bust opinion. "They did what they felt was best, and that opinion is open to interpretation, depending on how the process outlined in state law is viewed.

"It is up to each individual member of the State Building Commission to decide how they will vote on this issue," Sexton added.

In the opinion, Slatery pointed to different sections of state code and concluded both the administration and the speakers had legal grounds for their opposing stances over control of the Capitol's 2nd floor where the Forrest, Farragut and Gleaves busts are located.

Slatery delved at length into the state's Heritage Protection Act, which lawmakers passed in 2013 amid growing efforts to remove Confederate statues and symbols from government-owned sites. The law, amended several times since, prohibits the removal, relocation or renaming of certain memorials without permission or, in legalese, a "waiver."

Because the "State Capitol Commission exercises 'control' within the meaning of the Heritage Protection Act, it appears to be an appropriate public entity to file a petition with the Tennessee Historical Commission for a waiver to relocate the Forrest, Farragut, and Gleaves memorials," Slatery's opinion says.

As for whether the State Capitol Commission was authorized to file the waiver petition without the concurrence of the State Building Commission, Slatery noted the law states "all actions" of the State Capitol Commission under the Heritage Protection Act "shall be subject to the concurrence" of the State Building Commission.

So, Slatery wrote, "on the one hand, one could view the filing of the waiver petition as an action of the State Capitol Commission implementing or establishing a plan or policy under [a subsection] in which case the concurrence of the State Building would be required."

But, the attorney general continued, "on the other hand, one could view the filing of the waiver as a decision by the State Capitol Commission to pursue a legal remedy under the Heritage Protection Act — i.e., not an action pursuant to subsection (a) to create or implement a plan or a policy — in which case the concurrence of the State Building Commission arguably would not be required."

Lee spokeswoman Laine Arnold said the administration plans to take no immediate action, noting state law directs a waiting period of at least 120 days after the Tennessee Historical Commission acts.

"Nothing can happen between now and July 9," Arnold said, adding, "our plans have not changed" on removing the Forrest bust.

In his March video message urging Historical Commission members to approve the bust's removal, Lee said "Forrest represents pain, suffering and brutal crimes committed against African Americans, and that pain is very real for our fellow Tennesseans as they walk the halls of our statehouse and evaluate how he could be one of just the nine busts elevated to a place of reverence."

Placing the bust along with those of Admirals Farragut and Gleaves in the Tennessee State Museum would provide visitors with more historical context, Lee and others argue. The Republican governor has sought to distinguish his plan from the 2020 protests and demonstrations across the U.S. and in Tennessee in which a number of statues of Confederates and other figures were toppled amid a spate of fatal police shootings of African Americans.

During the Civil War, troops under Forrest's command were involved in the infamous Fort Pillow massacre in Tennessee during which a number of Black Union troops were killed as they sought to surrender. Forrest was condemned by many at the time and criticized for, at the very least, having lost control of his soldiers. He became the first grand wizard of the Ku Klux Klan but later abandoned the terror group amid its increasing violence.

Forrest's modern-day defenders note that the one-time KKK leader renounced his role before Congress. And they also cite his 1896 speech to the Independent Order of Pole-Bearers Association, a Black group, at a Memphis gathering where he called for better relations and understanding between the races.

Contact Andy Sher at asher@timesfreepress.com or 615-255-0550. Follow him on Twitter @AndySher1.

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