When the Alabama House Judiciary Committee in July named Birmingham attorney Jackson Sharman to lead the investigation into the impeachment charges against Gov. Robert Bentley, the governor pledged his cooperation “throughout this process.”
But by the time the report on Sharman’s investigation was released Friday, it was clear he believes Bentley failed in that promise, to the point that the governor’s lack of cooperation could be another ground for his impeachment.
The report cites Bentley’s refusal to testify before the committee or provide certain documents, the blacking out of other documents, and legal attempts to thwart the investigation.
“In this context, a ‘failure to cooperate’ can either be direct – as in Governor Bentley’s refusal to respond to the authorized document requests of Special Counsel, to the Committee’s subpoena or for requests for testimony – or it can be indirect, as by using litigation tactics to delay and frustrate the Committee’s attempts to get the facts,” the report states.
Bentley attorney Ross Garber responded in a statement issued Saturday to the allegations that Bentley was uncooperative.
“Governor Bentley cooperated with the investigation. He produced over 10,000 pages of documents,” Garber stated. “He was certainly entitled to raise legal issues about the Special Counsel’s incredibly broad document demands with the Committee. He did so, but has not yet received any response. His lawyers even offered to work many of these issues out cooperatively with the Special Counsel, but their letters were ignored.”
The investigation and impeachment proceedings are centered on whether Bentley misused state resources to further his relationship with former adviser Rebekah Caldwell Mason and if there were any campaign finance violations. A judge on Friday temporarily blocked the committee from beginning meetings next week on impeachment, but the Alabama Supreme Court on Saturday overturned that order.
In separate actions the Alabama Ethics Commission has referred ethics charges against Bentley to the Montgomery District Attorney’s Office. The Alabama Attorney General’s Office also is investigating the administration. And despite growing pressure to do so, Bentley said Friday he would not resign.
Lack of cooperation as grounds for impeachment isn’t new, the report states. It draws a comparison to the impeachment hearings for President Richard Nixon.
The U.S. House committee investigating Nixon found that “the refusal of the President to comply with the subpoenas was an interference by him with the efforts of the Committee and the House of Representatives to fulfill their constitutional responsibilities,” the 131-page report on Bentley states. “The President’s defiance of the committee caused the committee to refer an additional article of impeachment, Article III, based solely upon the President’s refusal to comply with the subpoena.”
Although Governor Bentley eventually produced 12,448 pages of miscellaneous documents, he produced no documents responsive to 20 – of 46 – requests in a Sept. 29, 2016 subpoena, issued after the governor failed to provide certain documents to the House committee.
Those 20 requests included: any and all audio or video recordings of any part of any part of any telephone or other conversations between Bentley and Rebekah Mason; the personnel file of Rebekah Mason; lists of any and all email accounts used by Bentley and Mason; complete lists of any and all cell phones or mobile devices (and service carriers, usage, and bills) used by Bentley and Mason; documents related to nondisclosure or confidentiality agreements signed or offered to anyone in the governor’s office; documents related to Mason visits to the governor’s mansion or Wynfield Estate; and the complete calendars of both Bentley and Rebekah Mason.
Among the other documents the report says were requested, but not provided by Bentley, were: documents, electronic data related to formal or informal files maintained within the governor’s office related to: Spencer Collier, Rebekah Mason, Jon Mason, Dianne Bentley, Bentley for Governor Inc., Alabama Council for Excellent Government, and companies owned by the Masons RCM Communications, Inc, and JRM Enterprises Inc.
The subpoenas also sought, but were not provided, files in the governor’s office maintained on any person involved in the investigation or prosecution of former Alabama Speaker of the House Mike Hubbard, who was convicted last year.
Other examples of non-cooperation by Bentley – noted in the report – include:
- The governor produced a series of text messages which were “innocuous and concern routine matters.” But investigators received copies of another set of text messages between Bentley and Mason – not produced by the governor but instead from Bentley’s ex-wife, Dianne Bentley that had a “clear significance” to the investigation.
- “Governor Bentley’s persistent attempted ‘litigation’ before the Committee is further evidence, however, of his lack of cooperation.”
- Despite multiple witnesses stating Bentley has consistently used three cell phones, Governor Bentley provided no documents responsive to the Committee’s request for a list of his cell phones or mobile devices.
- The Committee subpoenaed information related to Mason’s visits to the Governor’s Mansion or to Wynfield Estates but Bentley objected to it as “overly broad, unduly burdensome and harassing.”
- Bentley claimed the Committee’s request for a copy of Mason’s email account “seeks production of information that is outside of the possession, custody or control of the Office of the Governor.” However, other documents he produced to the Committee indicate that Rebekah Mason was in fact assigned a state email account.
- Bentley, Zach Lee, Director of Federal & Local Government Affairs, Wesley Helton, Director of Legislative Affairs and David Byrne, the governor’s chief legal adviser, have declined requests by the Committee to testify.
- The Committee subpoenaed documents related to the use of state aircraft. Bentley produced the publicly available “State Aircraft Usage” documents for January 2015 through August 2016. However, he has also produced a chain of internal emails that indicate members of his staff routinely review and amend “flight log records” before they are posted to the Governor’s website. Documents show after-the-fact red-line edits that were made to the State Aircraft Usage document for the Fourth Quarter of 2015 before it was made public. Such documents and communications were clearly contemplated by the Committee’s request but were not provided.
- Certain documents and emails, including a timeline created by Bentley and Mason, are blacked out. Emails regarding Mason’s compensation and text messages between Governor Bentley and ACEGov (Alabama Council for Excellent Government the group said to be paying Mason) are also blacked out. Other documents related to Mason and her company were not provided.
Bentley also objected to the Committee’s subpoena request for information related to his email accounts saying it “seeks information outside the possession, custody or control of the Office of the Governor.”
Instead, Bentley routinely used his Comcast email address to send and receive official State communications, including emails marked “Law Enforcement Sensitive,” the report stated.
“This portion of the investigation is relevant to the Committee’s inquiry,” the report states. “As illustrated by the FBI investigation of former Secretary of State (Hillary) Clinton during the recent presidential campaign, the use by senior executive branch officials of private or undisclosed email accounts for official or sensitive information can raise significant concerns. Governor Bentley’s email accounts should have been identified and responsive emails produced.”
Cooperation by others
Bentley wasn’t the only one who hasn’t cooperated with the investigation, the report states.
A dozen individuals or groups declined to provide documents and/or refused to be interviewed by the Committee’s Special Counsel, the report states. Those listed are: Alabama Council for Excellent Government (ACEgov), Bentley, his son Paul Bentley, Governor Robert Bentley for Governor, Inc., David Byrne, Marquita Davis, Michael Echols, JRM Enterprises, Inc., Mason and her husband Jon Mason, Office of the Governor, Mason’s company RCM Communications, Inc., Cooper Shattuck, Angella Stalnaker, and Collier Tynes.
“Although Special Counsel was able to conduct a fruitful investigation and to assemble a robust record for the Committee’s consideration, the record could have been different had different tools been available and had all witnesses, including Governor Bentley, cooperated.”