By Chip Brownlee
The Alabama Political Reporter
MONTGOMERY—Gov. Robert Bentley’s legal team is putting up a legal fight against the House Judiciary Committee’s investigation into the governor’s possible impeachment.
The Governor’s legal team filed a motion with the Committee Monday objecting to subpoenas issued by the Committee’s legal counsel Jackson Sharman late last month, but only after his office first turned over more than 10,000 pages of documents to Sharman and the impeachment investigators.
Attorneys for the Governor’s office said they turned over the documents Monday in an effort to show the Committee that they were willing to cooperate.
“We’re providing the documents voluntarily in an effort to cooperate with the Committee but the Committee doesn’t have subpoena authority, for many reasons,” said Ross Garber, one of the attorney’s for Bentley’s office. “We note that the Legislature actually considered giving them subpoena authority by proposing legislation, and it didn’t pass.”
The attempt to subpoena the Governor’s office — an attempt the Governor’s attorneys continue to say is unconstitutional — was an act of “blind ambition” and “political brazenness,” the filing read.
They say they subpoena was too broad and too burdensome to comply with.
“The Subpoena demands enormous volumes of information from the Executive Branch of Alabama government, which the Committee’s lawyer, a private citizen, is apparently interested in browsing through,” the Governor’s objection to the subpoena reads. “The Subpoena is both unlawful and unenforceable. It is also patently abusive, outrageously overbroad, unduly burdensome and far outside the legitimate scope of this Committee’s inquiry…”
Neither the Alabama Constitution nor the Code of Alabama gives the Legislature or any of its Committees subpoena power, the Governor’s attorneys have said.
Nor does it give the Legislature, its Committees or hired counsel the power to enforce any subpoenas issued. But Sharman seems to think it does.
“In fact, the legislature has repeatedly recognized that the Judiciary Committee does not have subpoena authority, and the House of Representatives specifically declined to provide subpoena authority to the Committee in connection with this impeachment investigation,” the objection read.
The bill proposing subpoena authority was introduced in the House in April during a discussion on the articles of impeachment being filed against Bentley. It failed to pass.
Late last month, the Committee issued dozens of pages of subpoenas in the investigation to Bentley himself; his office; his former top political aide and alleged mistress, Rebekah Mason; and his campaign, among others.
Bentley was the only one to comply with the subpoena, according to Clay Redden, House public information officer. He confirmed Bentley did provide documentation and the additional motion to quash.
The committee also ordered documents and records from five others as well, including Mason’s husband, her communications firm RCM Communications and a pro-Bentley dark-money group called the Alabama Council for Excellent Government.
The others did not comply with the subpoena, instead they opted to request their subpoenas be quashed, or thrown out. They provided “no documentation,” Redden said.
Sharman and his staff are now reviewing the 10,000 pages of documents turned over to their office from the Governor. They are expected to provide an update at the next committee meeting, which has not been scheduled yet, Redden said.
The requests within the subpoenas themselves are far-reaching. The committee ordered the Governor to turn over cell phone records between himself and Mason, her husband, former ALEA Secretary Spencer Collier and current ALEA Secretary Stan Stabler.
The Governor’s office has no idea what the committee is even trying to investigate, attorneys and the filing allege. They said Sharman was simply trying to find anything to go after the Governor.
“Special Counsel’s transparent tactic is thus to use an immense net to conduct a fishing expedition in the hopes of getting lucky and finding anything to justify this impeachment investigation,” the objection read.
Nevertheless, Sharman — a high-profile attorney with experience investigating high-profile politicians, having served on the US House Banking Committee’s Whitewater investigation in the 1990’s — said the committee has the authority to both issue and enforce subpoenas.
“I’m convinced you do, and I’m convinced the House does,” Sharman said at a Committee meeting in September.
There are two avenues, Sharman said, that the committee could go about enforcing those subpoenas. First, they could send the case to a circuit court and let them find the witness in contempt, or they could simply vote to find the person in contempt themselves.
What would happen then, no one knows, because a court would have to enforce the contempt with an order, and Sharman wasn’t very clear where his reasoning was coming from, either.
According to him, there was no precedent in state courts that indicate the subpoenas couldn’t be enforced. And even more so, he said the Alabama Constitution implies that the Legislature has the power to issue and enforce them.
Essentially, it doesn’t say they can’t, so they can.
Bentley is accused of maintaining an extra-marital affair with Mason, one of his top political aide, and using State funds to do it.
He’s also accused of ordering Collier to subvert a criminal investigation by Attorney General Luther Strange’s office into former House Speaker Mike Hubbard.
The accusations all came to light after Bentley fired Collier, Collier turned on him and recordings of Bentley’s explicit conversations surfaced on the internet soon thereafter.
Bentley, despite the recordings, has denied a physical relationship with Mason, but has apologized for “inappropriate comments.”
Only two other governors in the United States have been removed from office in the past 85 years following an impeachment.
Fifteen others have been impeached but weren’t removed from office.