The tipping point? A 3,000-page impeachment report laying out all the details of the alleged affair and evidence that Bentley tried to pull the levers of state power to keep it secret.
The report was requested by the state House Judiciary Committee, which launched impeachment proceedings hours before Bentley pleaded guilty Monday to two misdemeanors related to the affair and resigned.
The extraordinary report was the work of private lawyer Jack Sharman, who was special counsel to Congress during the Whitewater investigations into Bill and Hillary Clinton's real estate affairs. He and his team interviewed and received documents from dozens of people: Bentley's ex-wife, the first lady's top aide, Bentley's scheduler, the former head of the governor's protection unit, a top state investigator.
The Fix caught up with Sharman to talk about the report's impact.
THE FIX: What was it about your report that seemed to spur Bentley's resignation?
Sharman: I don't know if I can take all the credit or the blame, whichever way you want to look at it.
This affair, and these texts, and these unbecoming conversations are important only to the extent that they explain motivation and provide description of the landscape. I think that was one reason why the report seemed to be well-received.
But clearly it was just one part. Alabama Ethics Commission recommended he be charged with four felonies on Wednesday. Our report came out Friday. There was a decision on Saturday by the Alabama Supreme Court unanimously to reverse the restraining order against this. And then the fact that on Monday morning we commenced impeachment hearings. All of that taken together, obviously, had the effect that it had.
What do you want people to know about this report that they might not immediately grasp?
It's really not about sex. It's about power.
Reasonable minds can differ about Gov. Bentley having a relationship with Rebekah Mason. And even an inappropriate relationship by itself is not going to be a constitutional ground for impeachment. In fact, that's exactly the kind of thing that the voters could properly turn somebody out of office for.
On the other hand, the misuse of power is not something that voters can get at readily. And that if a public official, especially a chief executive, is motivated to misuse power for any reason, then that's what takes on the mantle of impeachment. That's the kind of thing that threatens the civil life of the state. And that's a lot more important than the scope of the affair of the content of text messages.
Alabama is often criticized — sometimes with justification — for a lack of institutional competence in government. The last speaker of the House is in prison and the chief justice of the Supreme Court has been suspended. But this was an instance where there was a deliberate constitutional process that held up in the middle of a genuine constitutional crisis.
Did anything you found surprise you?
What struck us and struck us fairly early was the use and misuse of law enforcement. That was a theme that kept popping up in many different ways.
The rank-and-file at all these law enforcement agencies felt abused. The members of Judiciary Committee were taking it quite seriously that use and misuse of law enforcement is absolutely a potentially impeachable offense.
Can you elaborate?
When we first started talking with the witnesses like Heather Hannah, the first lady's chief of staff, her testimony was very persuasive. It was detailed, it was coherent, and a lot of that involved intimidation, use of law enforcement, and unexplained events like the vandalism of her home. (Editor's note: The report says she found "B****" and "You will f****** die" written on her car, and a rock was thrown into her kitchen window.) We were careful to say we had no direct evidence or indirect evidence that Gov. Bentley ordered that or knew of it or approved it, or anything like that.
But she was convinced and had so reported to the police that it was related to her work. And also the event happened at the same time as her testimony to the Alabama Ethics Commission.
When those things started to surface to us, we then became more sensitive to testimony from people like Scott Lee, who was the agent who was supposed to be in charge of this 'special investigation' and go hunt down (audio tapes of his conversations with Mason).
And potentially, he would build a criminal case against Heather Hannah.What Gov. Bentley apparently wanted to do was to see if a criminal case could be built against her for some sort of eavesdropping, bugging, wiretapping kind of thing. He was convinced that she was somehow bugging his office. She said that he had accused her of bugging his recliner.
Basically if Scott Lee had not been a stand-up, honest cop, a criminal investigation would have been open on a private citizen as a cover for an effort to get back embarrassing tapes by the governor, and that's not good.
Your report was 3,000 pages long. Did you get everything you wanted?
There were a lot of people we couldn't talk to because they wouldn't cooperate. For example, the Alabama Council for Excellence in Government, they refused our document request. They just gave us publicly available documents. Part of Mrs. Mason's compensation came through ACE. There is potentially more work to be done there as well, I think.
Do you think your report will play a role in any further investigations?
I would expect they would carry on as they saw the evidence leading them. I doubt that their immediate reaction would be: Well, the governor pleaded guilty to these two and we're done. But, that said, prosecutorial discretion is that, discretion, so there's no guarantees of anything of either way.
EDITOR'S NOTE: As part of a plea deal with the state, Bentley pleaded guilty to misdemeanors in exchange for the state not pursuing felony charges related to the governor's affair. In a statement to The Fix, Supernumerary District Attorney Ellen Brooks said, “The events on Monday concluded the investigation as to the former governor, but do not necessarily conclude the investigation. There is no further comment.”
Also, our conversation with Sharman has been lightly edited for length and clarity.