Announcing the conclusion of the criminal investigation into former Gov. Robert Bentley on Wednesday, Supernumerary District Attorney Ellen Brooks was clearly frustrated with limitations in Alabama’s ethics and campaign laws that prevented further charges.
Last year, Attorney General Steve Marshall — a Bentley appointee — recused himself from investigating allegations the former governor misused state resources to cover up an affair with his then-chief political strategist Rebekah Mason.
Marshall appointed Brooks to take over the investigation led by his office’s special prosecutions unit and to oversee a special grand jury that was impaneled in the Spring of 2016 when allegations of Bentley’s affair first became public.
Last April, Bentley announced his resignation after pleading guilty to failing to disclose a $50,000 personal loan to his campaign in a timely manner and using nearly $9,000 of campaign funds for his personal benefit.
The Alabama Ethics Commission previously found Bentley had violated state ethics and campaign laws on at least four occasions, and according to the grand jury’s report, at least six allegations were evaluated over the course of the two-year criminal investigation.
Those included allegations Bentley used his office for personal gain and used state resources for his private benefit. However, Brooks said there was insufficient evidence that anyone investigated benefited financially and would be covered under Alabama ethics laws as they’re written today.
She said prosecutors would have needed to prove both to get a conviction.
“There were charges brought before us that were unwarranted either because there was insufficient evidence to support them or because they were not a crime under state law,” she said. “That’s not to say all of us don’t have regrets that our laws are not better, but they are what they are, and that’s why I think you see some of these suggestions in the grand jury’s report.”
Brooks was speaking about recommendations the grand jury included in its final report, which was released on Wednesday. In the report, the grand jury lists three “serious concerns about current state law that hinder successful prosecution.”
Though Brooks didn’t speak to any specific allegations again Bentley, those recommendations seem to apply to possible charges evaluated during the investigation into his office.
For instance, the grand jury points out that “The Ethics Act does not cover non-spousal intimate or romantic relationships.” Or as Brooks put it, “If I was under investigation and my spouse did something illegal that I helped facilitate it would be covered. If it was a boyfriend, it would not.”
The grand jury’s second concern was with how much influence a governor has over the Secretary of Law Enforcement and the Alabama Law Enforcement Agency (ALEA) — a consolidation of several state agencies established under the Bentley administration.
“The law authorizes the Governor to appoint the Secretary of Law Enforcement and does not prohibit the Governor from initiating, directing or receiving reports on criminal investigations for illegitimate political purposes,” the report reads.
Another accusation against Bentley was that he directed former ALEA head Spencer Collier to assist with efforts to cover up his affair, and according to Collier’s own statements, asked him about possible charges that could brought against people who had evidence of that affair.
As a law enforcement professional, Brooks said it was the relationship between the governor and ALEA that concerned her more than anything else.
“It’s not a problem when people use good judgement and keep politics and public service separate. It’s when the two blend that issues can come up,” she said. “I hate that temptation was out there, and I would like to find ways we can make it much more difficult for one person to control such great resources for personal use, whether it’s to make money or for other reasons.”
Finally, the grand jury’s report raised concerns about the blending of public and and private employees within the state government.
“State law does not prohibit non-government personnel from performing the functions of a public employe while receiving payment from a private entity for that work, and there is a question of whether the Ethics Act clearly covers such individuals,” the report reads.
Though Mason was originally a public employee in Bentley’s communications office, she worked as a senior political advisor during his second term. She was paid by a private non-profit formed by one of Bentley’s former legal advisers that was funded from undisclosed donors.
A copy of the grand jury’s report was delivered to Gov. Kay Ivey, Senate Pro Tem Del Marsh, House Speaker Mac McCutcheon and the Marshal’s office. Brooks noted that legislators already plan to create a committee to study proposed changes to Alabama’s ethics and campaign laws, and she urged state leaders to consider the report’s concerns in those discussions.
Not long after the conclusion of the investigation was announced, it was met with condemnation from some in Alabama’s political circles. Former Attorney General Troy King quickly seized the opportunity to impune Marshall, who he’s currently campaigning against to reclaim the office he lost in 2010.
“Former disgraced Governor Robert Bentley and his co-conspirators will not be held accountable and no other charges will be filed,” he wrote. “Under this attorney general, justice is not being delayed in Alabama, it appears to be dead.”
Asked about the perception that Bentley received preferential treatment because of his political status, Brooks said she and her team followed the law and did not let politics or any outside influence drive their investigations.
“I had no dog in this fight. I was asked out of the blue to do this, and what I swore to do was uphold the laws of the state and enforce them the best I could. I believe we’ve done that,” she said. “The charges that were brought were supported by the law and by the evidence. I can’t go outside the law, and I can’t make up evidence. I assure you we did the best we could.”
For a prosecutor, Brooks was unusually candid about her “frustrations that our laws didn’t allow us to go further on some matters.” In a personal comment, she even noted that “there are a lot of immoral things people do that are not criminally illegal.”
“I am frustrated that more couldn’t be done, but my concern now is the future. This governor and his administration are gone — we were able to accomplish that,” she said. “The future of our state depends on public confidence in its officials, and it depends on those officials using that trust and the offices they hold to move our state forward in a legal, ethical and moral manner.”