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Impeachment stalls in the House over questions of double jeopardy

Chip Brownlee | The Trace

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By Chip Brownlee
Alabama Political Reporter

MONTGOMERY — As more information has come out from the Attorney General’s Office on the criminal investigation of Governor Robert Bentley, the House impeachment investigation has hit a brick wall.

In late February, newly appointed Special Attorney General Ellen Brooks, who is overseeing the criminal investigation of Bentley, sent a letter to the House Judiciary Committee asking them to review a 1933 case that could affect the relationship between the AGO’s criminal investigation and the House’s impeachment investigation.

A motion to pause public hearings and continue a private impeachment investigation of Bentley’s relationship with his former top political aide, Rebekah Mason, failed to pass the committee, leaving the House investigation in a holding pattern that began last fall.

In her letter, Brooks cited the 1933 Alabama Supreme Court case of State v. deGraffenried, which held that government officials impeached and removed under section 174 of the Alabama Constitution could not be tried again for criminal charges by criminal prosecutors.

The Court held that having two trials violated their rights preventing double jeopardy.

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“I bring this case to your attention in an abundance of caution as the Committee determines its course of action,” Brooks wrote to the Committee on Feb. 24.

In the deGraffenried case, a Tuscaloosa County solicitor was acquitted for insurance fraud by a circuit court, but the Legislature then moved to impeach him, according to Othni Lathram, a legal expert with the Alabama Law Institute.

The Court held the solicitor could not be tried again because the impeachment, which they considered criminal, would have meant trying him twice for the same crime.

Resultingly, the Court then held that an impeachment proceeding in a circuit court, as they were held for lower offices, could bind the State of Alabama in a subsequent criminal proceeding, Brooks said.

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She wanted to alert the Committee of the possibility.

“Although the Court has not considered whether an impeachment proceeding in the Legislature would have the same effect, such a proceeding could create a legal issue for the courts to resolve in any potential criminal proceeding,” Brooks wrote.

The House Judiciary Committee, charged with investigating Bentley, met on Tuesday for the first time since October 2016 to discuss the letter from Brooks and its possible implications.

Rep. Mike Jones (R-Andalusia) who chairs the Committee, seemed unconcerned about the case, saying he had reviewed it before and thought that it didn’t apply. He said he wanted to give the Committee the ultimate decision.

“We were aware of this case,” Jones said. “We frankly did not see this case of being of major significance because it applied to a different section of the Constitution than the one we’re using. …  At the end of the day, I don’t think this would have caused us any problems, but I’m also respectful to someone who has been specially appointed to investigate this case.”

Gubernatorial impeachments are conducted under a different section of the Alabama Constitution, section 174, which was not reviewed in the deGraffenried case.

Rep. Chris England (R-Tuscaloosa) also didn’t think that double jeopardy would apply.

He likened the House investigation to that of a grand jury, which wouldn’t trigger jeopardy, but he also said the Legislature’s impeachment proceedings are not criminal in nature.

“I don’t think we need to lose sight of the fact that this is a political process,” England said.

While most of the members seemed to agree with England and Jones, the Committee meeting became about something else: Whether the Committee should continue its pause — triggered last year by a request from then-Attorney General Luther Strange — or allow its special counsel to continue his investigation.

Rep. Jim Hill (R-Moody) proposed a motion to do just that.

If it had passed, it would have continued the pause on public hearings but would have explicitly given special counsel Jack Sharman permission to continue investigating Bentley privately for possible impeachment.

The debate on the motion became contentious as members raised concerns over the possibility of triggering double jeopardy and others who reiterated old concerns over proper cause and standing.

“This is sloppy. This is very sloppy,” said Rep. Juandalynn Givan (D-Birmingham) who has been a critic of the effort to impeach Bentley from the start.

Givan, who voted yes on the motion to pause public hearings, said she was afraid that members of the Committee could be sued in their personal capacities for taking part in the investigation.

“This issue needs full clarity,” Givan said.

There were others yet, like Rep. Allen Farley (R-McCalla) and England, who said they wanted the investigation to continue but voted no on the motion. Farley said the two investigations should move on separate tracks.

Hill’s motion would have paused public hearings on a month-by-month basis to give Sharman and Jones time to deliberate over the possible implications of an impeachment investigation coinciding with a criminal one.

“I’m requesting you be purposeful, deliberate and educated,” Lathram advised the committee.

Farley, who voted no, wanted the Committee to move forward now.

“Looking at the letter, I would suggest that this group of individuals consider moving forward … and wish Ms. Brooks well,” Farley said. “We have waited on the AG’s Office all of this time. … We are ready to move forward.”

With the failure of Hill’s motion, no alternative was raised. Now the path forward is even more unclear.

“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 would direct Sharman to remain in a holding pattern on the investigation.

“We’ve been on a steady pause, both on the investigative side and on the public hearing side,” Jones said. “The motion was to continue the pause on the public hearing side, which was one of the requests of the Attorney General’s Office, but to specifically give authority to the special counsel and for it to come from the entire committee.”

Jones said he had no timeline now, but he wants to have a status meeting with Brooks to see if there are matters Sharman could investigate without interfering with Brooks’ investigation.

Bentley, who was accused last year of maintaining an extramarital affair with Mason, and using State funds to do so, has denied any wrongdoing and said that his affair with Mason wasn’t physical.

He has called the House effort to impeach him “political grandstanding.”

Last month, Attorney General Steve Marshall officially recused himself from an active investigation of Bentley and decided to appoint Brooks, a former Montgomery County District Attorney, as a special attorney general to handle the case.

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.”


Email Chip Brownlee at [email protected] or follow him on Twitter.

Chip Brownlee is a former political reporter, online content manager and webmaster at the Alabama Political Reporter. He is now a reporter at The Trace, a non-profit newsroom covering guns in America.

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Nick Saban tests positive for COVID-19, has “mild symptoms”

It’s unlikely Saban will be able to coach in person during Saturday’s Iron Bowl against Auburn.

Eddie Burkhalter

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University of Alabama head football coach Nick Saban.

University of Alabama head football coach Nick Saban has tested positive for COVID-19 ahead of the Iron Bowl and has mild symptoms, according to a statement from the university on Wednesday. 

“This morning we received notification that Coach Saban tested positive for COVID-19,” said Dr. Jimmy Robinson and Jeff Allan, associate athletic director, in the statement. “He has very mild symptoms, so this test will not be categorized as a false positive. He will follow all appropriate guidelines and isolate at home.” 

Saban had previously tested positive before Alabama’s game against Georgia but was asymptomatic and subsequently tested negative three times, a sign that the positive test could have been a false positive. He returned to coach that game. 

It’s unlikely Saban will be able to coach in person during Saturday’s Iron Bowl against Auburn, given the Centers for Disease Control and Prevention’s guidelines for quarantining after testing positive and with symptoms. Neither Saban nor the university had spoken about that possibility as of Wednesday morning.

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Civil rights leader Bruce Boynton dies at 83

The Dallas County Courthouse Annex will be renamed in honor of Boynton and fellow Civil Rights Movement leader J.L. Chestnut.

Brandon Moseley

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Selma attorney and Civil Rights Movement leader Bruce Carver Boynton

Selma attorney and Civil Rights Movement leader Bruce Carver Boynton died from cancer in a Montgomery hospital on Monday. He was 83. The Dallas County Courthouse Annex will be renamed in honor of Boynton and fellow Civil Rights Movement leader J.L. Chestnut.

“We’ve lost a giant of the Civil Rights Movement,” said Congresswoman Terri Sewell, D-Alabama. “Son of Amelia Boynton Robinson, Bruce Boynton was a Selma native whose refusal to leave a “whites-only” section of a bus station restaurant led to the landmark SCOTUS decision in Boynton v. Virginia overturning racial segregation in public transportation, sparking the Freedom Rides and end of Jim Crow. Let us be inspired by his commitment to keep striving and working toward a more perfect union.”

Boynton attended Howard University Law School in Washington D.C. He was arrested in Richmond, Virginia, in his senior year of law school for refusing to leave a “whites-only” section of a bus station restaurant. That arrest and conviction would be appealed all the way to the U.S. Supreme Court where Boynton and civil rights advocates prevailed in the landmark case 1060 Boynton vs. Virginia.

Boynton’s case was handled by famed civil rights era attorney Thurgood Marshal, who would go on to serve on the U.S. Supreme Court. The 1960 7-to-2 decision ruled that federal prohibitions barring segregation on interstate buses also applied to bus stations and other interstate travel facilities.

The decision inspired the “Freedom Rides” movement. Some Freedom Riders were attacked when they came to Alabama.

While Boynton received a high score on the Alabama Bar exam, the Alabama Bar prevented him from working in the state for years due to that 1958 trespassing conviction. Undeterred, Boynton worked in Tennessee during the years, bringing school desegregation lawsuits.

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Sherrilyn Ifill with the NAACP Legal Defense Fund said on social media: “NAACP LDF represented Bruce Boynton, who was an unplanned Freedom Rider (he simply wanted to buy a sandwich in a Va bus station stop & when denied was willing to sue & his case went to the SCOTUS) and later Bruce’s mother Amelia Boynton (in Selma after Bloody Sunday).”

His mother, Amelia Boynton, was an early organizer of the voting rights movement. During the Selma to Montgomery Voting Rights March in 1965, she was beaten on the Edmund Pettus Bridge. She later co-founded the National Voting Rights Museum and annual Bridge Crossing Jubilee in Selma. His father S.W. Boynton was also active in the Civil Rights Movement.

Bruce Boynton worked for several years at a Washington D.C. law firm but spent most of his long, illustrious legal career in Selma, Alabama, with a focus on civil rights cases. He was the first Black special prosecutor in Alabama history and at one point he represented Stokely Carmichael.

This year has seen the passing of a number of prominent Civil Rights Movement leaders, including Troy native Georgia Congressman John Lewis.

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Roby warns Americans to be careful this Thanksgiving

Congresswoman Roby urged Alabamians to adjust Thanksgiving holiday activities to avoid spreading the coronavirus.

Brandon Moseley

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Congresswoman Martha Roby, R-Alabama

Congresswoman Martha Roby, R-Alabama, warned Alabamians to adjust their Thanksgiving holiday activities to avoid spreading the coronavirus.

“Thanksgiving is a special holiday because it provides us an entire day each year to pause and give thanks for the many blessings we have received,” Roby said. “Particularly amid a global pandemic, the stress and craziness of life often make it easy to lose sight of just how much we have to be thankful for. Whether you are gathering with loved ones or remaining in the comfort of your own home, I hope we all take time to celebrate gratitude – something we may not do enough of these days.”

“As we’ve learned to adjust our daily routines and activities throughout the course of this pandemic, we know this Thanksgiving will not look like those of the past,” Roby said. “Please be mindful of any safety measures and precautions that have been put in place to help protect your family and those around you. The Alabama Department of Public Health (ADPH) released guidance that includes a list of low, moderate, and high-risk activities in order to help Alabamians have a safer holiday season. ADPH suggests a few lower risk activities such as having a small dinner with members of your household, preparing and safely delivering meals to family and neighbors who are at high-risk, or hosting a virtual dinner with friends.”

Congressman Robert Aderholt, R-Alabama, echoed Roby’s warning to be safe this Thanksgiving holiday.

Aderholt said: “I want to wish you and your loved ones a Happy Thanksgiving! I hope Thursday is filled with a lot of laughter and gratitude, and that you can share it with friends and family. And while we continue to navigate this Coronavirus pandemic, please stay safe this holiday season.”

On Thursday, the CDC encouraged families to stay home as much as possible over the holiday weekend and avoid spreading the coronavirus.

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“As cases continue to increase rapidly across the United States, the safest way to celebrate Thanksgiving is to celebrate at home with the people you live with,” the CDC said in a statement before the holiday. “Gatherings with family and friends who do not live with you can increase the chances of getting or spreading COVID-19 or the flu.”

The CDC has updated its guidelines to encourage families to stay home during the holiday.

  • The CDC said that postponing Thanksgiving travel is the “best way to protect” against the virus.
  • If you are sick or anyone in your household is sick, whether you think it is COVID or not, do not travel.
  • If you are considering traveling for Thanksgiving, avoid traveling to locations where virus activity is high or increasing.
  • Avoid travel to areas where hospitals are already overwhelmed with patients who have COVID-19.
  • Try to avoid traveling by bus, train or airplane, where staying 6 feet apart is difficult.
  • Avoid traveling with people who don’t live with you.
  • You should consider making other plans, such as hosting a virtual gathering or delaying travel until the vaccine is available or the pandemic is more under control.
  • Discuss with your family and friends the risks of traveling for Thanksgiving.
  • Try to dissuade people from visiting this holiday.
  • If you do travel, check for travel restrictions before you go and get your flu shot before you travel.
  • Always wear a mask in public settings, when using public transportation, and when around people with whom you don’t live.
  • Stay at least 6 feet apart from anyone who does not live with you.
  • Wash your hands often or use hand sanitizer.
  • Avoid touching your mask, eyes, nose and mouth.
  • Bring extra supplies, such as masks and hand sanitizer.
  • When you wear the mask, make sure that it covers your nose and mouth and secure it under your chin.

Remember that people without symptoms may still be infected, and if so, are still able to spread COVID-19. Remember to always social distance. This is especially important for people who are at higher risk of getting very sick. Keep hand sanitizer with you and use it when you are unable to wash your hands. Use a hand sanitizer with at least 60 percent alcohol.

Try to also avoid live sporting events, Thanksgiving Day parades and Black Friday shopping this year.

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Roby represents Alabama’s 2nd Congressional District and will be retiring at the end of the year. Aderholt represents Alabama’s 4th Congressional District and was re-elected to the 117th Congress.

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Bill Britt

Opinion | Let’s hope for Reed’s success

Reed’s temperament and style appear right for this moment in Alabama’s history.

Bill Britt

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State Sen. Greg Reed has been chosen as the next president pro tem of the Alabama State Senate.

State Sen. Greg Reed, R-Jasper, will lead the Alabama Senate as president pro tem during the upcoming 2021 legislative session. What changes will Reed bring to the upper chamber, and how will his leadership differ from his predecessor? No one knows for sure.

Reed succeeds Sen. Del Marsh, who has served as president pro tem since Republicans took control of the Statehouse in 2010. Marsh, along with then-Gov. Bob Riley, current felon Mike Hubbard and ousted BCA Chair Billy Canary orchestrated the 2010 takeover that saw the Republican rise to dominance.

Reed, who won his Senate seat the same year, was not a charter member of the Republican ruling class, but he benefited from the power sift.

Mild-mannered and studious with a quiet charm, Reed has steadily ascended the ranks of Senate leadership. His silver hair and calm determination have served him well. Reed is a senatorial figure straight out of Hollywood’s central casting.

In all, Reed is nearly universally liked and respected, which in the near term is a hopeful sign of potential success. But political leadership always comes with a warning: “Friends come and go, enemies accumulate.”

Reed’s relationship with Gov. Kay Ivey is certainly less contentious than Marsh’s and gives rise to the belief that there will be greater cooperation between the executive and the Senate.

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With the economy and public health under dire stress due to the ravages of COVID-19, legislative priorities are fixed: get people back to work and eradicate the coronavirus.

However, one of Reed’s first tests will be whether he can cool the smoldering anger of those senators who still feel the sting of Ivey’s rebuke over the allocation of CARES Act funds. He will also need to resist those who want to punish the administration over its use of public health statutes to implement mask mandates and other safety measures to prevent the deadly coronavirus spread.

Despite outward declarations of a unified body, the State Senate is a small, insular and unwieldy beast where egos loom large and consensus on policies is often tricky to achieve except on “red meat issues.”

Building a coalition on policy in the Senate is often a combination of horse-trading, cajoling and carefully applied pressure. The way forward in the near term is exact: pass legislation that spurs economic recovery and mitigates the health crisis at hand.

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But Reed will also simultaneously need to recognize what comes next for justice reform, prison construction, gambling and a myriad of other pressing issues. His job will be to understand the prevailing winds, which are evolutionary, not revolutionary.

As author Doris Kearns Goodwin noted in Lyndon Johnson and the American Dream: “For political leaders in a democracy are not revolutionaries or leaders of creative thought. The best of them are those who respond wisely to changes and movements already underway. The worst, the least successful, are those who respond badly or not at all, and those who misunderstand the direction of already visible change.”

Reed’s temperament and style appear right for this moment in Alabama’s history.

As President Abraham Lincoln said, “If you want to test a man’s character, give him power.”

Let’s all hope that Reed passes the test.

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