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The Governor’s attorney has introduced his own impeachment schedule

By Chip Brownlee
Alabama Political Reporter

MONTGOMERY — During a packed day at the State House, Gov. Robert Bentley’s attorney, Ross Garber, decided to hold a press conference to announce his own tentative impeachment schedule, which he said gives the Governor “due process and fairness.”

At an impromptu press conference at the State House, Garber announced his plan: no published written report on Friday, clear charges, public hearings, public witness testimony and cross-examination. He also said his plan would produce a quicker resolution that the schedule proposed by House Judiciary Committee Special Counsel Jack Sharman.

Garber, repeating earlier critiques of Sharman and the Judiciary Committee, said he believes the House should afford the governor due process through all of the Committee hearings, which will determine whether the Committee recommends impeachment articles against the Governor.

“All branches of government, not just the courts, must provide due process,” Garber said at his press conference. “The House recognized this when they passed the resolution authorizing this investigation.”

Members of the Judiciary Committee and the Special Counsel have compared the Committee’s process to a grand jury investigation, which generally gives no say or notice to the defense. Sharman, on the other hand, said the process is different. Due process should be afforded, he said, because a vote for impeachment by the House would remove Bentley from office immediately, effectively nullifying the votes of millions of Alabamians.

“The end result of this is going to be a finding about whether to undo an election,” Garber said. “This is not just an investigation. This is a decision about whether to throw out an election, whether to throw out votes, about whether to suspend the Governor from office. Under those circumstances, it is required that there be actual due process.”

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Garber’s presser today and his tentatives schedule is a response to an announcement from Sharman last week, which laid out a tentative schedule for the coming weeks that would include the release of a written report on the investigation into Bentley. The report on Sharman’s private investigation into Bentley’s should be made public as soon as Friday, by 5 p.m., according to the schedule.

So far, Sharman and House Judiciary Committee Chairman Mike Jones, R-Andalusia, have not said they plan to differentiate from the previously announced tentative schedule. Last week, Jones said the Committee would not meet this week on any of Garber’s complaint, which makes any pause on Sharman’s schedule unlikely before Friday.

Following the release of the written report, the Committee would spend the next month deliberating on the report, hearing a presentation from Sharman, possible testimony from witnesses and listening to a presentation from the Governor’s Office. Those hearings would begin as soon as next Monday.

The Committee could vote on sending a report to the full House as soon as May 1, keeping the plan in line with earlier promises to settle the impeachment question by the end of the 2017 Legislative Session.

Garber’s plan would have Sharman announce recommended charges on Friday, if any. If Sharman believes there has been “impeachable offenses,” Garber’s plan would have him release not just a summary report, but also evidence and a witness list, which would presumably give Garber and Bentley’s other attorneys time to prepare for the Committee hearings that would follow.

“This process can be handled responsibly,” Garber said. “It can be handled quickly, and also lawfully. I have confidence that members of the Committee, and the House of Representatives, will do just that.”

Sharman’s plan would have hearings begin next Monday, April 10. But Garber’s plan would set the first Committee hearings on April 13. Both the Special Counsel and Bentley’s attorneys would address the Committee and could file written briefs.

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Beginning on April 20, the Committee would meet to hear evidence, arguments and could, after the conclusion, vote on their recommendation to the full House. This process, Garber said, is faster than Sharman’s, which would put a full House vote on impeachment no earlier than early May.

Garber has asked for the standard for the Committee proceedings to mirror that of a courtroom, which would mean the Governor’s attorneys would be allowed to cross-examine the Special Counsel’s witnesses and call their own witnesses. But the House seems reluctant to grant that privilege.

“This is a legislative committee, not a courtroom, and that’s been my position since the beginning of this process,” Jones said Tuesday.

It is extremely unlikely that Jones will grant any hearing for Garber, which means his schedule is most likely dead on arrival. On Friday, Sharman’s written report is still expected to be released and the members of the Judiciary Committee said they still expect to meet on Monday for the first round of hearings.

Rep. Chris England, D-Tuscaloosa, said he supports Sharman’s schedule and sees the Committee’s hearings as investigative.

After being pressed by members of the press, Garber declined to say whether he would file anything in court to try to prevent the release of Sharman’s report on Friday. He repeated that he was hopeful the Committee would reconsider and “do the right thing.”

If the Committee refuses to acknowledge Garber’s schedule, Sharman’s schedule, which would set a full House vote on impeachment for early May, would prevail. In that case, the timing would match earlier promises to resolve the question of impeachment before the end of the 2017 Legislative Session in late May.

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If the House chooses to vote affirmatively on an impeachment, the Governor would immediately be suspended from his office, leaving Lt. Gov. Kay Ivey as the State’s temporary Chief Magistrate.

Bentley would remain suspended until he is found guilty and removed or acquitted by the Senate, which would likely convene in a special session to hold a trial.  Under an amendment passed in November 2016, two-thirds of the Senate would have to vote to remove the Governor; otherwise, he would return to his job.

Bentley has denied any legal wrongdoing, calling the effort to impeach him “political grandstanding.”

Arguments over the House’s political impeachment investigation are occurring simultaneously with parallel criminal investigations being conducted by the Attorney General’s Office, the Alabama Ethics Commission and possibly federal investigators. The Ethics Commission is set to meet Wednesday, only two days before Sharman’s report will be made public, to discuss ethics complaints filed against the Governor last year.

If the evidence submitted at the meeting today shows probable cause, a vote by the Commission could move the matter forward to the Attorney General’s Office or the appropriate District Attorney for presentation to a grand jury.

The House’s investigation was previously paused at the request of Luther Strange, while he was still serving as Alabama Attorney General. At the time, Strange said his office was conducting “necessary related work” that could overlap with the House’s investigation.

Legislators assumed he meant a criminal investigation, but Strange later denied it. His successor, Attorney General Steve Marshall, confirmed an investigation, appointing a special prosecutor to oversee the active criminal investigation.

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Between the Ethics Commission, the AGO and the House Judiciary Committee, Bentley could be facing up to three or four different active investigations. All of them are independent of one another.

The Governor has been under fire from lawmakers and portions of the media since a sexual relationship with his former top political aide, Rebekah Mason, became public in March 2016.

Since then, lawmakers have been putting pressure on Bentley, who has been accused of using State funds and resources to facilitate his relationship with Mason. Two lawsuits filed last year also accuse the Governor of using ALEA as a political tool to get back at those who didn’t approve of his and Mason’s relationship.

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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