The Alabama House Judiciary Committee Tuesday approved rules that will allow it to issue subpoenas in connection with an impeachment investigation into Gov. Robert Bentley and his alleged misuse of state funds.
Among those on the list to receive subpoenas: The Office of the Governor; Bentley himself; Rebekah Caldwell Mason, with whom Bentley is accused of having an affair; RCM Communications, Mason's company; John Mason, her husband; Bentley's gubernatorial campaign and a pro-Bentley dark-money group.
Jackson Sharman, special counsel on the impeachment investigation to the Judiciary Committee, said he had the list ready. And with the committee adopting their new rules, a subcommittee will meet soon to issue the subpoenas.
Once they've been issued, Sharman will serve them.
But what comes next is still up in the air. Sharman and key members of the committee said the committee has both the constitutional authority to issue the subpoenas and the ability to enforce those subpoenas through contempt proceedings if they're violated.
"I am convinced you (have the power), and I'm convinced the House does," Sharman said.
He said that he couldn't find a case in a state supreme court where a legislature's attempt to enforce a subpoena had been denied. Under the constitution, the power to issue and enforce subpoenas is implied at the least, Sharman said.
"If we cannot get cooperation, there will be court action within 21 days," Sharman said.
However, some members of the committee said they weren't sure, including Democratic Rep. Juandalynn Givan and Rep. Chris England.
"We're creating a power we don't have," Givan said. "We're creating contempt power. We're creating a subpoena power."
England said that the House had denied several times in the past attempts to legislate subpoena power to House standing committees.
Bentley's legal team, including attorneys Ross Garber and David Byrne, were consistent in their disagreement over the issue of subpoenas, as well. According to them, there is no statue in state law that gives the committee legal authority to issue them.
"You don't have it, but certainly as a legislative body you could look at it," Garber said.
But Sharman said the subpoenas are necessary because Bentley and other's on the his list of subpoenas won't cooperate with his requests for documents, records and files as the investigation into Bentley's actions continue.
"Some witnesses have been less cooperative," Sharman said. "Some of these witnesses have simply declined to respond to us or meet with us without offering any particular reasoning. Other witnesses have declined to produce documents on a variety of different theories, including the breadth of the particular request."
Sharman said those on his subpoena list are the witnesses who haven't cooperated, and that's why he needs the subpoenas to continue the investigation. But Bentley's attorneys say they did cooperate.
Tuesday morning, hours before the hearing, Bentley's office turned over more than 1,500 pages of documents concerning former ALEA Secretary Spencer Collier, Rebekah Mason, travel manifests, purchases and other records.
It was all a show, just to say they did before the meeting Tuesday, Sharman said.
Despite concern about the question of whether or not subpoenas can be enforced, the committee still approved their rules 8–3. Givan abstained her vote because she wanted more time to consider the rules.
But the governor's legal team scored a win Tuesday afternoon as well. The proposed rules made public yesterday barred the governor's lawyers from cross examining witnesses during the investigation.
Not all of the committee members were in support of that rule, Jefferson County Democrat Rep. Juandalynn Givan in particular.
"To me that appears to be in conflict with his or his counsel's due process rights," Givan said. "I just take pause with that particular rule."
Sharman, who was appointed back in July, said the rules were drafted so that the investigation could function much like a grand jury, but without the secrecy.
"I want to proceed fairly, efficiently and expeditiously," Sharman said. "This is still an investigation, not an impeachment proceeding. In other words, it's an investigation that will produce a report for the committee who may or may not accept. From which, the committee may or may not recommend to the House that actual impeachment proceeding be undertaken."
In a grand jury, the prosecution has nearly all of the power. Defense attorneys and their clients cannot even enter the room with the grand jury, and the defendant may only testify to the grand jury by invitation of the prosecutor.
But an amendment passed Tuesday, spearheaded by Givan, will allow Bentley's lawyers to do some cross examination during the hearings. It passed uninimously.
Garber, Bentley's attorney, said he was worried the real decision on Bentley's future as governor would be decided by the committee and that's why he wanted the hearings to be fair, with time for his attorneys to cross examine witnesses.
Bentley would have to step down as governor, according to Garber, if the House impeached him. He could only return to his job as governor if he was cleared by the Senate after their trial.
"This is it, this is the game," Garber said. "This is the whole thing. If the governor gets impeached, you're nullifying the votes of the people of Alabama who went out and cast their ballots."
Do you like this story? The Plainsman doesn't accept money from tuition or student fees, and we don't charge a subscription fee. But you can donate to support The Plainsman.
