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What is the Standard For Impeachment?

By Brandon Moseley
Alabama Political Reporter

On Friday, July 15, the Alabama House Judiciary Committee will meet in the Statehouse to decide whether or not to accept the recommendation of the subcommittee assigned to hire a special counsel to investigate whether or not the committee has enough evidence to impeach Alabama Governor Robert Bentley (R).

House Judiciary Committee Vice-Chair Representative Jim Hill (R-Odenville) told the Alabama Political Reporter on Tuesday, that the primary role of the special counsel is to discover the facts and bring that information to the full committee and the committee will then make the decision as to whether or not there is enough evidence to make a recommendation of impeachment to the full House.

The question that remains unanswered satisfactorily is what is sufficient to get an official impeached in Alabama and what is the standard for evidence?

The Alabama Constitution of 1901 has a much lower bar for impeachment than does the US Constitution. To impeach someone federally he or she has to be found guilty of “high crimes or misdemeanors.” Only two US Presidents, Andrew Johnson and Bill Clinton, were ever impeached and both of the were found not guilty by the US Senate. The Alabama Constitution set the bar lower, where impeachment is allowed for actual crimes as well as for “moral turpitude.”

What exactly that means is still debatable. On the one hand is state Representative Ed Henry (R-Hartselle) who has spearheaded the impeachment proceedings against Gov. Bentley. Henry told the Yellowhammer News recently: “Here’s what it comes down to,” said Henry. “I’m an elected official. I represent 45,520 people in House District 9. I believe the majority of those individuals want Robert Bentley removed as governor. Therefore, I would vote accordingly. That’s what it comes down to — do the majority of people in your District want Robert Bentley removed as governor. And if they do, then they should vote accordingly.”

That the people of the district would rather have a different Governor is not a very high standard. It probably is going to take more evidence than that otherwise we would impeach people any time their poll numbers dropped below 40 percent.

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The other extreme is the case of disgraced former Speaker of the House Mike Hubbard (R-Auburn) who was never impeached by anybody in the House even though the Alabama Political Reporter began reporting on the allegations of possible ethics violations as early as 2012. That drumbeat of new discovery of one abuse of power after another eventually led Alabama Attorney General Luther Strange (R) to appoint a special Acting Attorney General: former St. Clair County District Attorney Van Davis (R) to investigate Hubbard. Nobody in the legislature did anything.

When legislator after legislator had to trek to Lee County to testify about what they knew about Hubbard’s shady dealings, nobody in the legislature signed any articles of impeachment. When Davis’s team brought 23 criminal indictments against the Speaker they re-elected him as Speaker of the House. When so much evidence against the Speaker entered the public domain that even the Alabama Republican Party Steering Committee signed a statement urging that the Speaker be removed, the legislature still refused to ask Mike to step down as Speaker, much less recommend that he be impeached.

State Representative Jack Williams (R-Vestavia) insisted that it is a bedrock principle that no one is punished unless they are found guilty beyond a reasonable doubt by a jury of their peers.

That would be equally absurd. There would be no reason for there to even be an impeachment provision in the Constitution if you used that high of a standard because the people who are found guilty of felonies by a jury are (like Mike Hubbard) are automatically removed from public office. An appeals judge could still overturn Hubbard’s conviction based on some arcane legal technicality; but any reasonable person could see that he was guilty of being a political pirate who voted on legislation for a company who was paying him at the time to lobby for them.

In the real world, our jobs, our families, our relationships, our reputations live and die based on the preponderance of the evidence standard not on the beyond a reasonable doubt standard which is only used when we lock someone in a cage or execute them.

The then married Gov. Bentley has admitted having an “inappropriate relationship” with his top political advisor the still married and much younger Mrs. Rebekah Caldwell Mason. Gov. Bentley acknowledges misconduct, but denies actual adultery. There was enough evidence of impropriety that the first lady has since divorced the governor and the scandal has been reported on in publications and televisions shows that reached far outside of Alabama.

Most legislators are of the opinion that an affair, even if it can be proven, is not sufficient grounds to impeach a governor as he is far from the only public official in the state who casually ignores their marital vows.

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There are questions about if state resources were improperly used to facilitate or cover up the affair. There are also questions about whether Bentley campaign dollars that went to Mrs. Mason may have violated state election laws. Similarly there are questions about whether or not donations to Bentley’s non-profit group were improperly used to compensate Mrs. Mason for her, “services.” Did entities, including lobbyists and corporations, donate to pay Mason in order to influence legislation? Did that make Mrs. Mason an unregistered lobbyist? Were state employees including Alabama Law Enforcement Agency Director Spencer Collier improperly fired on the orders of Mrs. Mason? Were the Governor and Mrs. Mason conspiring to try to get the ethics trial of then Speaker of the House Mike Hubbard thrown out of court and prosecutor Matt Hart removed from the case? Did the Governor and Mrs. Mason orchestrate the mass firings of ALEA investigators in order to close down several investigations into possible corruption by public officials including members of the legislature?

All of this and more is already being investigated by the US Department of Justice (who has appointed their own special prosecutor), the Alabama Attorney General’s office (who has reportedly just empaneled a grand jury to investigate these allegations), and the Alabama Ethics Commission.

All of this brings up the question of should the legislature act on the Bentley matter before he gets indicted by law enforcement or should they wait on those investigations to conclude. Should they impeach a governor after he has been indicted knowing that any of that testimony is going to be admissible in a future criminal trial?

These very tricky legal questions are going to have to be decided by the legislators as they move forward with their investigation.

Brandon Moseley
Written By

Brandon Moseley is a senior reporter with over nine years at Alabama Political Reporter. During that time he has written 8,297 articles for APR. You can email him at [email protected] or follow him on Facebook. Brandon is a native of Moody, Alabama, a graduate of Auburn University, and a seventh generation Alabamian.

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