SOUTH UNION STREET

Bentley seeks forgiveness, gets restraining order

Brian Lyman, and Andrew J. Yawn
Montgomery Advertiser

Facing the possible end of his political career and potential criminal charges, Gov. Robert Bentley on Friday went to God. His attorneys went to court.

Alabama Governor Robert Bentley walks to the podium during a press conference on Friday, April 7, 2017, outside the Alabama Capitol building in Montgomery, Ala. On Thursday Senator Del Marsh, R-Calhoun, asked for Governor Robert Bentley to resign over ethics issues.

And at the end of the day, their petitions were answered -- to an extent.

After a chaotic day of contrition, condemnations and court battles, a Montgomery County judge late Friday afternoon ordered the Alabama House of Representatives to stop impeachment proceedings against the governor, scheduled to begin next week. Attorneys for the House Judiciary Committee, who argued in earlier hearings the court had no right to intervene in the impeachment process, immediately appealed. The decision came after two Montgomery judges decided to recuse themselves from the case.

But the court's decision came after a difficult day for the embattled governor. The restraining order didn't prevent the release of a 131-page report that accused the governor of misusing state workers and vehicles to pursue an affair with senior political advisor Rebekah Caldwell Mason, and painted a picture of Bentley obsessively seeking tapes of a conversation he had with Mason. Bentley also saw further erosion of support on Goat Hill: House Speaker Mac McCutcheon, R-Monrovia, called on Bentley to resign, a day after Senate President Pro Tem Del Marsh, R-Anniston, called for him to step down.

"It’s the only way to avoid taking our state on a long, painful and embarrassing journey whose ending is likely known to us all," McCutcheon said at a news conference Friday afternoon. McCutcheon said he had told Bentley personally that morning he should leave office.

Bentley also faces trouble from the Alabama Ethics Commission, which Wednesday found probable cause that the governor violated ethics and campaign finance laws.

In a hastily-called news conference Friday morning, Bentley said he had faced major struggles in the past year, and asked Alabamians to "please forgive me."

But, he said, he wouldn't quit.

“Once again, let me say I do not plan to resign,” he said. “I have done nothing illegal. If the people want to know (whether) I misused state resources, the answer is simply no, I have not.”

Court drama

While Bentley sought forgiveness, his attorneys put the finishing touches on legal briefs. In a filing Friday morning, the governor's attorneys asked the Montgomery Circuit Court to issue a restraining order against the release of the report prepared by House Judiciary Committee special counsel Jack Sharman, and impeachment hearings scheduled to start next week.

But the action found itself on a carousel. The case was initially assigned to Montgomery County Circuit Judge James Anderson, who recused himself due a "potential conflict" with his law practice. The action then went to Montgomery County Circuit Judge Roman Shaul, who held a hearing late Friday morning.

But a few hours after that hearing, Shaul recused himself adding more uncertainty to an already tumultuous series of events. According to the order for recusal, Shaul, who was appointed by Bentley, sought guidance from the Judicial Inquiry Committee on whether the conflict of interest was waivable. The JIC informed him it wasn't. The case would up in Montgomery County Circuit Judge Greg Griffin's chambers. Griffin, like Shaul, was appointed by Bentley.

Wherever they took place, the arguments echoed months of back-and-forth between Bentley's attorneys and the House Judiciary Committee about whether the committee's impeachment process is a legal hearing or an investigation. Bentley's attorneys argue that it is a legal process, and that Bentley has not been given the opportunity to mount a defense – including notice of charges and the ability to cross-examine witnesses – which violated his due process rights.

Bentley's filing also called the articles of impeachment "impermissably vague and ambiguous" and said the committee exceeded its authority.

Ross Garber, right, attorney for Robert Bentley, and David Byrne, left, legal advisor for Governor Robert Bentley, discuss the ethics commission decision against Bentley during a press conference in Montgomery, Ala., on Thursday April 6, 2017.

"Clear United States and Alabama Supreme Court precedent establish that the governor is entitled to due process protections in impeachment proceedings brought against him," the filing stated, noting the House's adopted rules on impeachment last year.

Ross Garber, an attorney representing Bentley, argued in Shaul's court that other states that tried to impeach governors laid out an orderly process for doing so. Garber cited the 2009 impeachment and conviction of Democratic Illinois Gov. Rod Blagojevich, and the 2004 attempt to impeach Connecticut Democratic Gov. John Rowland, who resigned before the impeachment process could take place. Arizona Gov. Evan Mecham, a Republican, was impeached and removed from office in 1988.

"It should be clear we’re not asking the court to be able to manage the Legislature in this respect," Garber said. "The fundamental question is, does due process apply?"

The committee's rules give Bentley some limited powers to mount a defense and ask questions of witnesses. But questions must go through House Judiciary Committee chair Mike Jones, R-Andalusia, who can decide not to allow them.

The committee's attorneys say they are conducting an investigation similar to one by a grand jury. In that respect, they argue, Bentley has more rights and privileges than most investigative targets. Attorneys also said the court had no jurisdiction over a legislative process. Othni Lathram, the director of the Alabama Law Institute and an attorney with the House Judiciary Committee, said Bentley was seeking "extraordinary relief."

"You have a branch of government, the executive branch, who has come to a separate branch of government attempting to enjoin the proceedings of a third, co-equal branch of government," Lathram said.

At one point, Shaul asked Lathram if the Legislature could write impeachment rules "in any form, shape or fashion."

"Is there no constitutional limit on what the Legislature can do?" he asked.

Lathram said there were federal court cases on the due process rights for legislative members. "I don’t think you'll hear an argument from me or Mr. Sharman . . .that governor is entitled to no due process. The question is what level and at what time."

"So who gets to determine that?" Shaul asked.

Jack Sharman, special counsel for the House Judiciary Committee, speaks to the press following a hearing on a motion from Governor Robert Bentley to stop the House's impeachment process and the release of a impeachment report on Friday, April 7, 2017, in Montgomery, Ala.

Lathram said the state Constitution gives the full power to determine the impeachment process.

Shaul said after the hearing he was inclined to hold up the hearings, but not the release of the report, saying "the things I’m most troubled by would be the fact somebody is forced to defend something in such a short time."

The judge never made that decision. But Griffin granted the TRO on the hearings, after hearing the same arguments from the opposing sides.

Sharman, who attended both hearings, said afterward the Legislature would appeal any restraint to the Alabama Supreme Court. The issue, he said, was constitutional.

"Impeachment in Alabama is committed wholly, solely and absolutely to the House of Representatives, just as the Senate has the power to try the impeached officer," he said. "When another branch of government, such as the judiciary, tries to dictate to a sister branch what it can and cannot do in its constitutional duties, you have a separation of powers problem."

Sharman called the Bentley motion "an attempt to burn the clock."

'I have done nothing illegal'

The governor Friday -- making a religious testimony as much as a personal statement -- didn't discuss what he expected the report to say, but hinted it might go into detail about his relationship with Mason.

“Exposing embarrassing details of my past personal life, as has happened in the past, and as I’m told will happen again, will not create one single job, will not pass one budget," Bentley said. "It will not help any child get a good education. It will not help a child get good health care."

Sharman declined to say after the court hearing what was contained in the report.

"Embarrassing is in the eye of the beholder," he said. "We’ve been thoroughly factual in what we’ve done, and the reader can draw their own conclusions."

The governor, who served for years as a deacon in a Baptist church, repeatedly invoked his religion during his six-minute statement, saying he had asked God to “take these struggles” from him in a private moment last May. Bentley, whose wife Dianne divorced him in 2015 after 50 years of marriage, said he had tried to rebuild his relationship with his family.

At the same time, Bentley also criticized those who had "taken pleasure in humiliating and shaming me, and shaming my family (and) shaming my friends."

"I really don’t understand why they want do that," he said. "It may be out of vengeance, jealously, (or) anger; it may be out of personal political benefit. I would ask them to please stop."

Whatever the motivations, Bentley made it clear they would not lead him to voluntarily relinquish his office.

“Once again, let me say to the people of the state how sorry I am,” Bentley said. “There’s no doubt I have let you down. All I ask you continue to pray for me, and I will continue to pray for you.”