Bentley notes reveal thinking of governor, candidates in U.S. Senate appointment

Former Gov. Robert Bentley wrote that Luther Strange told him he could do more for the state as U.S. senator than attorney general during an interview for the position last year. 

“I can do more for you (the state agenda) as senator than I can as AG,” Bentley quoted Strange saying in a Jan. 6 note ranking his potential appointments to the state's junior U.S. Senate seat, following it with notations that Bentley said meant support for roads and services. 

The then-governor also wrote that Strange had “equal knowledge to any congressman” on federal issues and had the “indirect” support of Sen. Richard Shelby, while writing that “(McConnell and Session(s) are OK).” The governor also favorably noted that Strange had already announced a campaign for the seat, which opened after President Donald Trump nominated then-U.S. Sen. Jeff Sessions as U.S attorney general.

“No one else made a total commitment to run,” Bentley wrote, underlining each word.

The notes, recently released to the Alabama Department of Archives and History, shine some light on an opaque process that led to Strange’s appointment. Besides Bentley’s notes, the documents include legal memos from Bentley’s staff and submissions from the candidates interviewed.

Bentley said in a phone interview Tuesday that the notes reflected his thinking at the time and that he felt he made the right decision.

“You always have to look at a snapshot in time and have to say ‘Why did I do this at this particular point in time,’” the former governor said, and that after weighing several factors in his decision, ”Luther came out on top.”

The governor ranked Strange first or second in six different categories he used to evaluate the candidates, including the quality of their interview; the “tumble down” effect of their appointment; knowledge of federal issues; relationships with the existing Alabama congressional delegation and benefit to the state in the U.S. Senate.

Strange is campaigning to hold thatseat, and faces former Alabama Chief Justice Roy Moore in a runoff for the Republican nomination for the U.S. Senate on Sept. 26. An email seeking comment was sent to the Strange campaign Tuesday.

The appointment also raised questions about what if any investigations of Bentley were taking place. Shortly after the appointment, Strange’s successor, Steve Marshall, recused himself from a probe conducted by the attorney general’s office. Bentley eventually pleaded guilty to two misdemeanor charges and resigned in April. 

As attorney general, Strange did not publicly discuss whether or not an investigation was taking place. 

“We have never said in our office that we are investigating the governor,” Strange said at a press conference announcing his appointment on Feb. 9. “I think it’s actually unfair to him and unfair to the process. We have six years of a record of the highest caliber of conduct of people in our office. That’s why we don’t comment on these things and why I don’t plan to comment on that anymore.”

Bentley said Tuesday “the governor’s office was never told or made aware of any investigation targeting the governor or the governor’s office. In fact, we were told the exact opposite.” 

Bentley noted Strange was close to Scott Pruitt, the former Oklahoma attorney general who became the director of the Environmental Protection Agency. He also wrote of the “trickle down” effect that he would appoint a new attorney general. Bentley considered similar "trickle down" effects for other appointees 

In a separate memo, the governor’s legal team prepared different scenarios for the appointment. Chief Legal Adviser David Byrne and Deputy Legal Adviser William Patty wrote in a Jan. 5 memo that the governor would have to call a special election if he appointed someone serving in the U.S. House of Representatives or in the Alabama Legislature. But, they wrote, appointing a constitutional officer – like the attorney general, secretary of state, state treasurer or state auditor – or any appointed state office holder would allow that person to stay in office “until a successor is elected and qualified in the general election in 2018.”

After appointing Strange, Bentley set the primary election for the seat for the June 2018 primaries, with the general election taking place that November. After he resigned, Gov. Kay Ivey moved the primary to August and the general election to December of this year. 

The governor complimented the other finalists in the notes. Bentley wrote Rep. Connie Rowe, R-Jasper was “smart (and) stands for what she believes in” and that she had “unwavering loyalty to me and the state.” He wrote Jim Byard Jr., then the director of the Alabama Department of Economic and Community Affairs (ADECA) gave the “best interview” and had “great local knowledge.”

U.S. Rep. Robert Aderholt, R-Haleyville, Bentley wrote, knew Vice President Mike Pence and had a “total knowledge” of federal issues, and “gets along with the ultra(-)right wing but not a part (Freedom Caucus).” Former Rep. Perry Hooper Jr., R-Montgomery, Bentley wrote, was close to Trump. Bentley's notes on Strange do not make any explicit mention of Trump.

Bentley also put Senate President Pro Tem Del Marsh, R-Anniston, on his finalist list, but wrote that he nearly didn’t because he heard secondhand that Marsh threatened to “f—k with me for the next two years if I didn’t appoint him.” Bentley also wrote that Marsh in his interview “seemed angry when he said ‘Governor you tell me who would make a better senator. No one better than me.’ But I added him because I felt he was very qualified.”

Marsh, who considered challenging Strange for the Senate seat last spring, said in an interview Tuesday that he “never recalled making such a derogatory remark” on the first comment. On the second, Marsh said he believed the governor “mistook seriousness with anger,” saying he said he believed he was “as well-qualified as anybody” in the race.

“I felt I was very qualified,” he said. “I was serious. It was a serious situation.” 

Bentley said Tuesday it “was a time of high emotions” and agreed Marsh might have been trying to show his seriousness.

Bentley also interviewed former Alabama Chief Justice Roy Moore, who faces Strange in the Sept. 26 runoff. Moore was one of the top picks of the Alabama Republican Executive Committee in a survey Bentley’s office sent out last November, but he did not make the list of finalists. The former governor said he had the “utmost respect” for Moore.

“It was not necessarily what we were looking for at that time,” he said. “You have to look at it at that point in time.”

The files also include submissions from candidates and Bentley’s notes on interviews. Sen. Bill Hightower, R-Mobile, gave letters of recommendations from seven different foreign politicians, including a former prime minister of Slovenia and a former member of the Parliament of the United Kingdom. In his interview with Sen. Trip Pittman, R-Montrose, Bentley wrote that the state senator was the “only one to say Jesus” up to that point.

Former Revenue Commissioner Julie Magee submitted a list of reasons to appoint her and suggested in her submission that Senate Majority Leader Mitch McConnell, R-Ky., asked Bentley to appoint a woman to the U.S. Senate. Magee said the administration should “just own it.”

“Appointing a female over a male would make me a hot commodity,” Magee wrote, “I don’t like it, but we may as well use it to our advantage.”

Bentley said McConnell told him “we are made up of old white men in the Republican Party. If you could consider a woman, that would be really good for the party.”