Gov. Robert Bentley’s appointment of former state Attorney General Luther Strange to the U.S. Senate is raising many questions, including not only whether the choice of Strange is ethical, but also whether the special election timeline laid out by the governor is even legal.
The latter, more imminent question is when Alabama law says Bentley must hold an election. The answer? Well, it’s not entirely clear. The relevant statute has odd wording that leads to another even stickier question: what the forthwith?
“Whenever a vacancy occurs in the office of senator of and from the state of Alabama in the Senate of the United States more than four months before a general election,” the law says, “the governor of Alabama shall forthwith order an election to be held by the qualified electors of the state to elect a senator of and from the state of Alabama to the U.S. Senate for the unexpired term.”
So if the vacancy occurs more than four months out from the regular ol’ election, the governor can make a temporary appointment, sure, but he “shall forthwith order an election.” After Jeff Sessions’ confirmation as U.S. Attorney General earlier this month, this is undoubtedly the situation we’re in, but the questions keep coming: How long is forthwith? And is the law saying the election must not only be ordered immediately, but also held “forthwith?” Again, it’s unclear.
One Alabama House Representative, Democrat Chris England, says the statue is pretty clear to him and that the governor is on the wrong side of it. Once the governor’s office announced the timeline for the special election, which they say will be held along with the regular elections in 2018, England, a lawyer, lashed out on social media, calling the timeline “illegal.”
“So [the governor’s announcement] means we will have a primary in June and the general in November,” Rep. England wrote in a Facebook post. “Sounds legit? Well it’s not. It is still ILLEGAL … How can the governor’s office use that date when the vacancy occurred outside the time requirements set by law? I will answer that question for you. They can’t.
“So again,” England continued in the post, “we must demand that the governor follow the law and hold a special election. There isn’t a ‘we don’t have the money’ exception to the law. There isn’t a ‘this sure would be easier’ exception to the law. There isn’t a ‘this would protect the appointee’ exception to the law. The law is what it is, it is clear, and it should be followed. Again we should demand that the governor follow the law and hold a special election FORTHWITH.”
England apparently wrote the governor’s office about his concerns and received a more than 800-word legalistic reply, which he also posted on social media. Bentley’s excuse for the delay in the election? There are many, but England wasn’t far off. Two of the reasons cited in the response by the governor’s office were, indeed, “we don’t have the money” and “this sure would be easier.”
“There are several factors in considering what is a reasonable time [in which to call a special election],” the governor’s response to England said. “Those factors include compliance with federal statutes and cases, saving unnecessary expense and setting a time that will increase voter participation and turnout.”
Why, though, was the governor’s office discussing not how long “forthwith” is, but how long “a reasonable time” is? Black’s Law Dictionary defines “forthwith” as “a reasonable time,” they said. And they’re right, it does, but they left out the other part of the definition, which is “as soon as a thing may be done” and gives as an example a plea being given within a 24-hour period. We may not be able to hold an election in 24 hours, but if we’re holding it “as soon as [it] may be done,” November 2018 is clearly not the “forthwith” I -— or Black — had in mind.
Alongside their response, Rep. England posted his reaction to the governor’s office’s rationale:
“Seriously, after reading this I am even more convinced that what they are trying to do is illegal,” he wrote.
The other major question raised by Bentley’s appointment of Strange is one of ethics. Should the former Attorney General who halted the governor’s impeachment because of “related investigations” be able to then go in and interview with the potential suspect of those investigations for a new job? I don’t think so, and ethical guidelines published by the American Bar Association and the National District Attorneys Association (NDAA) seem pretty clear cut on the issue, too.
According to the ABA’s Standards on Prosecutorial Conduct, a prosecutor should never do what Strange — as chief prosecutor of the state of Alabama — has done: interview for a job with a subject of an investigation.
“A prosecutor should not, except as law may otherwise expressly permit, negotiate for private employment with any person who is involved as an accused or as an attorney or agent for an accused in a matter in which the prosecutor is participating personally and substantially,” one provision of the standards says. Yes, you could argue that seeking the office of senator from Bentley would be public employment, not private, so let’s keep skimming through those ethical standards.
Another section of the ABA’s code of ethics for prosecutors takes it a step further: “A prosecutor should not permit his or her professional judgment or obligations to be affected by his or her own political, financial, business, property or personal interests.”
Then there’s the ABA’s section on cooperating with other investigating agencies, which seems to leave out the part where prosecutors should halt all “related investigations” to those at hand, instead explicitly saying that prosecutors like Strange should “work cooperatively with to develop investigative policies.” Strange’s investigative policy? Stop investigating Bentley.
The real gem, though, is in the NDAA’s ethical standards for prosecutors: “A prosecutor should not hold an interest or engage in activities, financial or otherwise, that conflict, have a significant potential to conflict, or are likely to create a reasonable appearance of conflict with the duties and responsibilities of the prosecutor’s office.”
Under this standard, it doesn’t matter whether the Bentley-Strange affair is corrupt; it matters whether it appears to be. And trust me, this one smells. There’s something rotten in Montgomery, and it’s got me asking what the forthwith and other strange Strange questions.