House Judiciary Committee treads lightly on Robert Bentley impeachment probe.
An impeachment probe into Gov. Robert Bentley’s relationship with his former top staffer remains stalled in the Alabama House of Representatives, even as some legislators push for its revival.
The House Judiciary Committee, charged with investigating Bentley for possible impeachment, voted Tuesday to continue a pause that began in the fall following a request from then-Attorney General Luther Strange.
The meeting was called to discuss a procedural issue that arose from a letter from Special Attorney General Ellen Brooks, the special prosecutor appointed to oversee a separate criminal investigation of the governor.
In late February, Brooks sent the committee a letter asking them to review a 1933 court case, which, according to her, could have caused a conflict between the two separate investigations.
The Alabama Supreme Court hearing the case more than 80 years ago ruled at the time that some impeachments — conducted in alignment with one portion of the Alabama Constitution — could be considered criminal proceedings.
Since they could be considered criminal in nature, there could be the possibility of triggering double jeopardy. If the governor was acquitted in a Senate trial, then the Attorney General’s Office could be prevented from prosecuting him again in a criminal court.
Most of the committee did not seem too concerned with the case’s possible implications, though.
Judiciary Committee Chairman Mike Jones, R-Andalusia, said he had reviewed the case when conducting research and did not believe it would apply to the impeachment of constitutional officers such as the governor. Gubernatorial impeachments are covered under a different portion of the constitution that had not been reviewed in the 1933 State v. deGaffenried case, Jones said.
The 1933 impeachment was against a Tuscaloosa County solicitor held in a circuit court, not held in the Legislature against a constitutional officer. The solicitor had previously been acquitted on insurance fraud charges, according to a legal expert with the Alabama Law Institute, Othni Lathram.
Rep. Chris England, D-Tuscaloosa, said he didn’t believe the committee should be worried about triggering double jeopardy yet.
“I don’t think we need to lose sight of the fact that this is a political process,” England said. “There is nothing this committee will do that would impact double jeopardy. Nothing.”
Rep. Jim Hill, R-Moody, presented a motion at the committee hearing that would have continued the pause on public impeachment hearings on a month-to-month basis.
The pause would have given the committee chairman and special counsel Jack Sharman time to investigate the case and coordinate with Brooks on the possible overlap between the two investigations.
The motion would have also given Sharman, who is providing legal aid to the committee, the go-ahead to continue investigating Bentley in private. The motion failed with a tied vote of the committee.
Several legislators didn’t like the idea of continuing a pause, no matter what reason, and resuming a private investigation didn’t cut it.
“We have been empaneled as members of the legislature to decide on an impeachment resolution, to determine whether the governor should be removed,” said Allen Farley, R-McCalla, who voted against the motion.
Farley wanted hearings to resume and the two investigations to be conducted on separate tracks.
The House Judiciary Committee began investigating Bentley in 2016 after several members of the House introduced a resolution calling for articles of impeachment. The committee met several times last year and even went so far as to subpoena the governor, Mason and others close to them.
But in November, Strange asked the committee to suspend their investigation because he was afraid it would overlap with “necessary related work” within his office. Last month, newly appointed Attorney General Steve Marshall appointed a special prosecutor to oversee an active investigation into Bentley.
Farley said he wanted to get moving on the impeachment because there has been “increased pressure” from constituents who are concerned about the committee’s slow pace.
“We’re ready now,” Farley said. “I think we need to move forward. Let’s move the state of Alabama past this.”
With Tuesday’s vote, Jones said the committee would continue in a holding pattern.
“We’re pretty much where we were before this meeting started,” Jones said. “The last instructions from the Attorney General’s Office, before this letter on Feb. 24, were for us to pause. That’s still in place at this point.
Jones said he had no timeline now, but he wants to have a status meeting with Brooks to see if there are matters the committee could investigate without interfering with the attorney general’s investigation.
Bentley, who was accused last year of maintaining an extramarital affair with Mason, and using State funds to do so, has denied any legal wrongdoing and said that his affair with Mason wasn’t physical.
He has called the House effort to impeach him “political grandstanding.”
Attorneys from the governor have criticized the impeachment hearings in the past. They have said the governor should be afforded due process in the House by allowing his attorneys to interview witnesses and present their own evidence, which the committee has been hesitant to do.
If the House votes to deliver impeachment articles, the governor will be suspended immediately and will remain suspended unless he his acquitted in a Senate trial.
“In other words, impeachment would immediately throw out the votes of Alabama citizens,” said Ross Garber, an attorney for Bentley’s office. “This is not something that can be done without due process and very substantial evidence of serious wrongdoing.”