Gov. Bentley says impeachment investigators want ‘unconstitutional’ powers, fight looming

HUNTSVILLE, Ala. --  The committee investigating whether Gov. Robert Bentley should be impeached has given the governor a Monday deadline to answer subpoenas seeking numerous financial records.

But Bentley indicated this week he won’t respond to the subpoenas issued by the House Judiciary Committee. He said the committee doesn’t have the authority to issue subpoenas compelling records or testimony.

“We have given 1,688 pages of documents to that committee that would answer any legitimate question that they might have,” he said. “What they did was they voted themselves power that the constitution does not allow.”

The governor is accused of neglect of duty and corruption in office, stemming from an alleged affair with his former top political advisor, Rebekah Mason, the use of state resources and claims of improper firing by Spencer Collier, former head of the Alabama Law Enforcement Agency.

Bentley has denied any wrongdoing.

The governor complained Monday the committee granted broad powers to its special counsel, Birmingham-based attorney Jack Sharman.

“This should be frightening to the people of this state,” Bentley said. “That a committee of the legislature has more power than prosecutors do in the attorney general’s office. Even if I appointed a special prosecutor or even if the attorney general does this, they have to carry this before a grand jury to get subpoenas, so this is a frightening thing for the people of this state.”

Sharman, who worked on the Whitewater investigation of Bill and Hillary Clinton in the 1990s, said the investigation could move forward if Bentley were more cooperative.

“Were the Governor to fulfill his promises of transparency and cooperation, however, the delay and expense of subpoenas would not be necessary,” he said.

The judiciary committee asked the House Clerk last week to issue subpoenas after a request by Sharman.

The subpoenas seek personal and campaign records from Bentley, Mason and her husband and their related businesses and other documents. The subpoenas ask for the responses to be provided by 5 p.m., Monday, Oct. 10.

While Bentley and his attorneys contend the subpoenas are unconstitutional, Sharman said the Alabama Legislature has “plenary power,” which allows for the issuing of subpoenas and enforcing a response.

“The legislature is a co-equal branch of government, vested by the Alabama Constitution with full, ‘plenary’ power to legislate, to investigate and to discharge its constitutional duties, such as the possible impeachment of a Governor by the House and trial by the Senate,” Sharman told WHNT News 19. “Subpoenas are part of that plenary power.”

Plenary power is basically the power needed to do the job. Alabama law grants district attorneys and grand juries subpoena power. It doesn’t spell out that authority for the legislature, but it also doesn’t deny it that power.

Connecticut-based attorney Ross Garber is representing the governor’s office in the impeachment investigation. Garber previously represented both former South Carolina Gov. Mark Sanford and former Connecticut Gov. John Rowland in impeachment proceedings.

Garber said Bentley’s office has cooperated with the investigation.

“We have provided voluminous information to the Judiciary Committee and plan to produce additional documents,” Garber said. “Unfortunately, the Committee insists on ignoring its constitutional obligation to provide the Governor with due process and persists in wasting taxpayer money by issuing subpoenas without authority.”

The Alabama House and Senate both had bills introduced this year on the issue of subpoena power.

The bills would have specifically granted standing committees – including the judiciary committee – “the authority to subpoena witnesses to testify before the committee and to subpoena documents as needed to conduct the business of the respective committee,” according to Senate Bill 69. The “bill would further provide for enforcement by the circuit court regarding persons failing to properly respond to a legislative subpoena.”

The Senate bill was introduced in February and “indefinitely postponed” on April 28, according to legislative records. House Bill 557 was introduced in April and referred to the House Committee on State Government.

Both sides expect the subpoena fight to continue, with the court system eventually having to weigh in.

But the investigation is ongoing, Sharman said. That effort has included obtaining numerous documents, conducting witness interviews, including some under oath, and receiving photographs and audio recordings from various witnesses.

Alabama law doesn’t contain much detail concerning how an impeachment investigation is to be conducted by the House of Representatives. If the committee recommends impeachment, the issue would go to the full House for a vote.

If the governor is impeached, he would be suspended from office pending the outcome of trial in the Alabama Senate.