Report on "Luv Guv" Bentley might be "salacious," but plea deal that apparently did not require withheld documents to be produced is a bad deal for Alabama

Gov. Robert Bentley
(From Mickey Welsh, Montgomery Advertiser)

Alabama Gov. Robert Bentley negotiated a plea deal yesterday that required him to resign, while dropping four possible felony counts to two misdemeanors. That's a bad deal for Alabama, but it's even worse when you consider one member of the House Judiciary Committee, Chris England, has declared his work is done. That means the hundreds (maybe thousands) of documents the Bentley administration withheld from investigators -- plus numerous sworn interviews that were not granted -- likely will not see the light of day. If that happens, the public will never know the full extent of misconduct, even criminality, that apparently permeated the Bentley Administration.

Legislative and law-enforcement types, by signing off on the plea deal, are sending this message to future miscreants in public office: "If you think you are in trouble, go ahead and cover up and stonewall -- and you likely will get away with it."

The House Special Counsel made it clear in his report that Bentley, his staff, and his associates failed to cooperate with the investigation in any meaningful way. Now, Bentley is being rewarded for his intransigence -- and his lack of respect for the legislature's oversight duties.

Here is one puzzling question: Why were officials in such a hurry to cut a deal with Bentley. Prosecutors and legislators clearly had the upper hand, so why agree so quickly to a deal -- much less one so outrageously favorable to Bentley? I can think of only one answer: The process was driven at every turn by Republicans, and they were concerned that a trial or impeachment proceeding would damage the party "brand," whatever is left of it in the wake of the Mark Fuller, Mike Hubbard, Roy Moore, and now Robert Bentley scandals.

If Team Bentley had been required to turn over responsive e-mails, text messages, phone records, and financial records, how many GOP big-hitters might have been implicated? Our guess is "a lot." And that might have been the No. 1 driver behind the quick plea deal.

This much is certain: No deal should even have been considered until Bentley and his office had turned over all of the documents sought by the House Special Counsel -- and all individuals sought for interviews had testified under oath. I rarely agree with al.com on anything, but their editorial on the matter was right on target:

Bentley pleaded guilty to two misdemeanor charges. But the stakes are too high for the pursuit of justice to stop here. This impeachment investigative report creates as many questions as it does answers.

It implicates many people in Montgomery beyond the governor. At times, it seems like everybody knew everything but nobody did anything.

Allegations were made in the report that many surrounding Bentley were complicit in the cover up.

They too should be held accountable for their actions. We know from the commission report Bentley, Mason and others refused to cooperate with the investigation. Subsequently, we still do not know the extent to which their alleged actions constitute criminal behavior. What more would we learn from their private messages and emails?

Birmingham attorney Eric L. Welch Guster, a legal analyst on cable news shows, was on the same page. Here is Guster, from Facebook:

LAW, POLITICAL PARTIES and RACE -- ALABAMA STYLE: Bentley got probation and his side piece got protected. That's how this works and has been this way for generations.

The GOP protected their own even in the face of sex, thievery, lies & nationwide embarrassment. Robert Bentley will remain free WITH A MISDEMEANOR while other politicians similarly situated received prison sentences and NEVER had an offer of probation. There was enough evidence on Bentley that a 13-year-old could take this case to trial and win. There was no need for a plea, except to protect him and his beloved boo-thang.

They claim justice is blind but we know better. It sees color, political party affiliation and the ties that bind them all together.

I am done with this foolery.

How blatant was the cover up in this matter? Here is a reminder: The Special Counsel's report makes it clear that The Bentley Bunch engaged in world-class stonewalling and foot-dragging. Reaching a plea deal -- without requiring that all documents be produced and interviews completed -- might mean that individuals who possibly engaged in criminal conduct could benefit from a cover up.

News outlets have described the impeachment report as "salacious," "lurid," and "damning." Imagine how bad it would look if the Bentley Administration actually had produced all of the documents and granted all the interviews investigators sought.

From the report: "Governor Bentley and the Office of the Governor did not meaningfully cooperate in the Committee’s investigation." That suggests Team Bentley likely caused the report to contain only a fraction of the misconduct that could have been revealed. A reader is left to wonder how many crimes remain under wraps because of the administration's determination to obfuscate. The report might be "salacious," but it's probably not nearly as salacious, or definitive, as it should be.

Was the Special Counsel amused by Team Bentley's determination to claim "privilege," squawk about "due process," and generally ignore, or fail to respond to, document requests and subpoenas? Not exactly. In fact, the report states that failure to cooperate with the investigation is a potential ground for impeachment. From the report:

Governor Bentley's failure to cooperate with the Committee’s investigation is potentially an independent ground for his impeachment. The Legislature is a coequal branch of government. The executive branch cannot ignore or treat in a cavalier fashion its constitutional duties, one of which is to participate fully and in good faith with the discharge of the Legislature’s constitutional duties. In this context, a “failure to cooperate” can either be direct – as in Governor Bentley’s refusal to respond to the authorized document requests of Special Counsel, to the Committee’s subpoena or for requests for testimony – or it can be indirect, as by using litigation tactics to delay and frustrate the Committee’s attempts to get the facts.

The Special Counsel provides nine examples of foot-dragging from Bentley and his staff or supporters:

(1) Governor Bentley asserted privilege in response to the subpoena

In his submissions to the Committee, Governor Bentley claimed that the Committee’s subpoena “attempts to subvert the attorney client privilege.” As counsel to the Office of the Governor has noted elsewhere, “public sector lawyers should keep in mind that they might someday be subpoenaed to testify about the substance of conversations with their clients.” Looking to the federal courts for guidance, in disputes arising from the Whitewater matter involving President and Mrs. Clinton, government lawyers were obliged to produce what might otherwise be reasonably construed as material protected by the attorney-client privilege.

(2) Blacked-out portions of documents produced.

A timeline created by Bentley and adviser/mistress Rebekah Caldwell Mason is "heavily and arbitrarily" blacked out. Text messages between Bentley and the ACEGov dark-money nonprofit are "almost entirely" blacked out. The same is true regarding certain e-mail communications with the press regarding Mason's compensation. One key e-mail from Bentley to Mason was redacted in its entirety. From the report:

Despite requests, Governor Bentley failed to provide the Committee with a log of redactions made to documents produced and failed to offer any justifications for the redactions.

(3) Cell phones, state phones, and “burner” phones.

Despite multiple witnesses stating that Governor Bentley has consistently used three cell phones, Governor Bentley provided no documents responsive to the Committee’s request for a list of his cell phones or mobile devices. . . . The Committee noted that the document labeled OTG009338 (Ex. 5-CC) is a cover page for a selection of text messages from a phone that is referred to as “Governor state phone.” At a minimum, Governor Bentley’s “state phone” was in the possession, custody or control of the Office of the Governor.

(4) Mason’s state email account.

Governor Bentley has similarly claimed that the Committee’s request for a copy of Rebekah Mason’s email account . . .  “seeks production of information that is outside of the possession, custody or control of the Office of the Governor.” However, the documents he produced to the Committee indicate that Rebekah Mason was in fact assigned a State email account. . . .

Rebekah Mason’s State email account is in the possession, custody or control of the Office of the Governor, and responsive emails should have been produced.

(5) Governor Bentley’s email accounts.

The Committee subpoenaed information related to the email accounts used by Governor Bentley. Governor Bentley objected that the request “seeks information outside the possession, custody or control of the Office of the Governor.” He continued: “As has been reported in the press, the Governor does not maintain a State of Alabama email address.”

Governor Bentley’s statement appears to be inconsistent with emails that were included in the documents produced. Those emails show that Governor Bentley routinely used his “comcast.net” email address to send and receive official State communications, including emails marked “Law Enforcement Sensitive.” This portion of the investigation is relevant to the Committee’s inquiry. As illustrated by the FBI investigation of former Secretary of State Clinton during the recent presidential campaign, the use by senior executive branch officials of private or undisclosed email accounts for official or sensitive information can raise significant concerns. Governor Bentley’s email accounts should have been identified and responsive emails produced.

(6) Visitor Logs to the Governor’s Mansion.

The Committee subpoenaed information related to Rebekah Mason’s visits to the Governor’s Mansion or to Wynfield Estates Governor Bentley objected that this request is “overly broad, unduly burdensome and harassing.” However, a simple electronic search of the access logs for those facilities would easily yield the requested documents and information.

(7) Mason’s compensation information.

Governor Bentley provided invoices from RCM Communications, Inc. to Bentley for Governor, Inc. for only five months: January, February, and December 2015, and January and March 2016. Public records show that Bentley for Governor, Inc. paid Mason throughout 2015, after the campaign was over. In addition, Mason has stated publicly that she was paid by ACEGov in 2015. The Committee sought, without success, (1) the complete set of invoices for the period of time requested and (2) all other documents related to Mason’s compensation.

(8) Unedited State aircraft records.

Governor Bentley produced the publicly available “State Aircraft Usage” documents for January 2015 through August 2016. However, he has also produced a chain of internal emails . . . that indicates that members of Governor Bentley’s staff routinely review and amend “flight log records” before they are “post[ed] to the Governor’s website.” In fact, the documents labeled show after-the-fact red-line edits that were made to the State Aircraft Usage document for the Fourth Quarter of 2015 before it was made public. Such documents and communications were clearly comprehended by the Committee’s request but were not provided.

(9) Refusal to testify under oath.

On October 24, 2016, the Committee, through Special Counsel and pursuant to Amended Committee Rule 6, sent to the Office of the Governor notices for the transcribed testimony under oath of Governor Robert J. Bentley, Zach Lee, Wesley Helton and David Byrne. Despite follow-up requests, the noticed persons have declined to testify.

In the end, Team Bentley's stonewalling almost makes Richard Nixon and his staff of crooks look forthcoming by comparison. For now, the public is left to only guess at the misconduct, even criminality, that the Bentley Bunch has covered up.


Alabama House Judiciary Committee Impeachment Report, Including Exhibits

Impeachment report by Montgomery Advertiser on Scribd