Attorney General Marty Jackley issues a statement today that elicits one big question: What the heck are you talking about?!
Attorney General Marty Jackley confirmed today that Secretary of State Jason Gant has asked the Office of Attorney General to review several petitions submitted by candidates for United States Senate for potential violations of criminal law that are outside the authority of the Secretary of State [South Dakota Attorney General's Office, press release, 2014.05.06].
Several? Candidates? Plural? The only documented criminal activity related to Senate nominating petitions so far has come from illegitimate candidate Annette Bosworth and her husband Chad Haber, who committed perjury by falsifying their circulator's oaths. Secretary Gant passed that information to AG Jackley one month ago, and Jackley at the time mostly dismissed that information, advising that "the only action available to review" the certification of the Bosworth petition was "a prohibition action in court." To issue a new statement, AG Jackley appears to have received additional information about additional criminal activity by additional candidates.
But who? What crime has anyone identified in anyone else's petition?
Based on the authority granted to the Secretary of State to supervise elections, the Secretary of State’s Office reviewed and approved the nominating petitions submitted by the candidates. Given this approval, the candidates do appear on the ballot in the November election [SDAG, 2014.05.06].
The November ballot? The Bosworth petition only places her on the June ballot. If we read AG Jackley's text exactly, he appears to be saying he's investigating only the petitions of individuals already on the November ballot, who at this point are Democrat Rick Weiland and Independents Larry Pressler, Gordon Howie, and Clayton Walker. (And I contend that even if he is investigating all four, four does not meet the definition of several.)
“Election complaints received from the Secretary of State will be reviewed for potential criminal violations, and any issues having merit will be further investigated. Because the review involves a federal election, I have discussed these matters with United States Attorney Brenden [sic] Johnson, and we are in agreement that any investigation into potential violations should not affect this election as the voters not prosecutors should determine the election outcome,” said Jackley [SDAG, 2014.05.06].
That the AG's office can't even spell the U.S. Attorney's name right suggests haste and lack of review. So does the assertion that an investigation should not affect an election (and Mr. Johnson, if you have signed on to this legal thinking, I am disappointed). Voters should determine election outcomes. Those who have questioned Annette Bosworth's petition and other shady activities are not asking law enforcement to decide the election outcome; we are asking law enforcement to investigate and prosecute crimes.
But AG Jackley apparently can't fully do his job during an election year:
The courts have made it clear that any investigation into potential criminal violations of law should not affect an election if at all possible. Many violations of election laws do not rise to the level of criminal misconduct. The public interest favors minimizing interference in elections.... In addition, the time frames associated with investigating and taking further criminal action, if any, concerning these petition matters would exceed the time frames associated with appearance on the November ballot. This includes the presumption of innocence and the 180 day speedy trial right. As a result, further review of a candidate’s petition does not affect that Secretary of State’s certification of the candidate to appear on the ballot [SDAG, 2014.05.06].
Herein lies the important point of law enforcement, or lack thereof, that should concern us most. Attorney General Jackley repeats his contention from April that his investigations cannot affect the appearance of a name on the ballot. Fine. But in today's release, he goes further, essentially declaring a stay-out-of-jail pass for anyone who manages to get on a ballot. Suppose Rick Weiland commits a crime today—perjures himself, drives drunk, spray-paints "EB-5 killed Benda!" on Mike Rounds's garage door. The offended parties report the crime. By the reasoning of this press release, AG Jackley says to them, "I'm sorry, but if I take action on this crime, I might affect the election. Call me November 5."
Crime is crime. If citizens bring forth evidence of crime, law enforcement should investigate. If the evidence is substantial, law enforcement should prosecute. Making investigation and prosecution contingent on whether the suspect is a candidate for public office favors the political class and violates the rule of law.
Attorney General Jackley, you evidently have before you allegations and evidence of criminal activity. Sitting on that evidence and doing nothing, just because the people that evidence indicts are political candidates, is political favoritism. Cut the crap. Do your job.
So AG Jackley wont investigate the millions of missing tax dollars from Rounds' EB5 corruption, but appears to be investigating Howie, Walker, or Pressler's petitions in addition to Bosworth's???
Recent reports are that Lawrence went after Howie's petitions for Rounds and now Rounds' political appointee is investigating?
Cue up Kasey Musgraves Jackley's hit song "I'm Just Blowing Smoke."
How do weaselly maroons like Jackley make it through law school? Does he actually get paid not to do his job? Prolly agood thing he doesn't get to interpret the constitution. Seriously,this isn't surprising coming from wingnuts in South Dakota, at least from what I have seen so far.
Jackley's press release doesn't explicitly say he's delaying the prosecution, Cory. Are you sure that's what he means?
Mercer is tweeting that he believes the indies are the ones being probed by Marty.
If we all recall, the SD GOP Chairman Craig Lawrence, facilitated buying Howie's petitions. How perfect is it that Rounds' appointee and supporter uses his office to go after Rounds' potential competition?
Jackley drug his feet on going after Bosworth who helps Rounds by being in the race, even after a public challenge, but now rushes in to go after an Independent candidate?
Looks terrible,
Kurt, AG Jackley is saying he won't take action until after the election. He's delaying prosecution.
Larry, ask Bob what crimes the Indiers may have committed. Folks out there have their petitions. Someone else must have seen these alleged crimes and brought them to the AG's attention. And we must be talking crimes beyond just the style and form errors that would cause the SOS to invalidate petitions.
Won't take action until after which election.
So try to squeeze Mike through, and then throw all the Indies in jail. Lol.
That's what I don't get, Bree. Everything he says in the press release seems to be about November. But even if we accepted his non-electoral-interference argument, there's no reason to wait that long to take action against Bosworth.
What's he doing? What game is he playing? What does he have on anyone else?
One possible theory a friend of mine brought up during lunch:
This is an attempt to discredit certain Independent candidates during the fall election. Particularly there could have been 'complaints' made against the petitions for Pressler and Howie. These complaints will likely end up either being nothing, or at least so minor they wouldn't end with any prosecution. However during the investigation it will come out who exactly is being investigated. In that case a non-Independent campaign can use those investigations to show why people must not vote for the Independent candidates. If the investigation completes too soon it won't help certain candidates from losing voters to the Independent candidates; basically because their names will have been cleared too soon before November.
As for Bosworth. I don't think it really matters if she gets prosecuted for anything on her petitions (although I hope she does). It doesn't matter at this point if a court decides she did anything illegal with her petitions because enough people know she acted immorally; that should be enough to keep her from getting elected now or in the future.
Interesting lunchtime hypothesis, Ken. If that's the case, who will leak the names of the candidates being investigated?
Your last statement, Ken, hints at a favoritism for candidates somewhat akin to what Jackley is expressing. How often do we decline to prosecute a crime simply because we feel public opinion will prevent the suspect from winning public office? For what crimes is, "You don't get to win an election" the statutorily prescribed punishment? And for which crimes do we leave investigation, prosecution, and sentencing up to a majority vote of the electorate?
Interesting that an 'independent' has not gotten into the US House race.
Cory wrote:
>"Kurt, AG Jackley is saying he won't take action until after the election."
He says an investigation won't keep a candidate off the ballot. He doesn't explicitly say he won't conduct one before the election. Maybe that's what he means, but if it is, he should have said it more clearly.
I like Ken's theory.
There is always someone willing to 'accidentally' leak info.
I agree with you that she should be prosecuted, and convicted if found guilty. But since I have no faith in our AG I've resigned myself to be content that she has made herself undetectable. This is a case where the SDDP or an independent group needs to work on actually growing its candidate roster so they can give the AG some competition when the position is up for election. If Jackley felt some pressure he may have acted differently in this case (that is a big MAY).
By the way. Thank-you Cory for your coverage on the Bosworth issue(s). Someone had to do it, and I don't think the media would have ever brought up any of this without your persistence.
There are two issues here we seem to be combining:
1) The first is the enfranchisement of individual citizens. This requires extra-ordinary respect for giving choice to voters if possible. This has been past practice encouraged by court rulings. The question here is should a citizen who wants a candidate on the ballot have their wishes denied because of a violation by the petition gatherer? Even with clear language this is the case, I'm not sure the courts would allow it (I would hope they would but I don't know). Personally, I'd like the law clarified and the question asked. But, now the law (thus rule of law) says otherwise.
2) Whether the legal system should be cautious with regard to indicting candidates who will not have a chance to defend themselves in court? Here I think they should (even in the face of what appears to be clear evidence of guilt). The principle of innocent until proven guilty is a fundamental component of our system of justice. Conviction in the court of public opinion is a heavy price for candidate who may be innocent.
3) And, then you have the issue Santema raises, innuendo. I get his concern that the rumor could be bad but it is certainly unlikely to be as bad as prosecution and the reality that the time it takes for trials to be disposed of effectively makes it unlikely it will be resolved before the election.
Bottomline: We have a suspicion one of the problems is likely Bosworth thanks to Cory's work. But, she has a right to defend herself in court. And, with regard to the other infraction/candidate, the same applies regardless of who it is.
To answer the Cory's last question: I don't think we allow anyone to be investigated, prosecuted, and sentenced by a majority vote of the electorate. It is the Courts who have this obligation and responsibility. Public lynchings (literal) are illegal. However, since we know that someone besides Bosworth has likely done something that has caught the eye of the AG, there is nothing that would stop a industrious citizen from doing their own investigating as the information is public record.
A lot like that Establishment lawsuit against Greg Brannon.
Troy says:
Enfranchisement means we let real criminals walk.
Jackley's shot over the bow smells like a chilling effect to those planning runs as 'independents' as the exodus from the GOP to unaffiliated smacks of monkey-wrenching. Putrefaction by any other name.
Funny, recently (I think last week) I got a fundraising letter from Craig Lawrence asking me to send money because the sure GOP Senate win is at risk due to the Indies.
Bree,
Huh? I do not suggest that they not be prosecuted or investigated. As one who wishes Bosworth were not on the ballot, I'd love to see her off. But, I also don't want it to occur via the use of law enforcement. EVERYONE is innocent until proven guilty.
I know we're not supposed to talk about this, but has there been any progress on obtaining Benda's death certificate? Or is that tied to November as well?
Troy,
You wrote in your first post, "The question here is should a citizen who wants a candidate on the ballot have their wishes denied because of a violation by the petition gatherer?"
Hell yes, when the petition gatherer happened to be the candidate, who quite apparently swore a false oath. And the candidate listed her name on the petitions as a name not listed on the voter rolls.
I posted the following on David Montgomery's column on the online Argus Leader this afternoon.
""Because the review involves a federal election, I have discussed these matters with United States Attorney Brendan Johnson, and we are in agreement that any investigation into potential violations should not affect this election as the voters, not prosecutors, should determine the election outcome," Jackley said in a statement."
So as usual, both parties are complicit in protecting would be felons. This is complete hogwash on the parts of both Brendan Johnson and Marty Jackley. If Bosworth swore an oath that was false, that is perjury and a felony. If Rounds is complicit in the theft of millions of dollars and the coverup of the same, that is also a felony. So if either of them wins the election in November, and then is convicted, we will be sending a convicted felon to the US Senate. Can we please stop making South Dakota the laughingstock of the United States and world?
Does any sane person on this blog actually believe any court decision against Bosworth would make a difference to her. She is so far detatched from reality she lives in the twilight zone. She lives in the state of denial,therefore she should not be able to run in South Dakota.
Where do you draw the line at not prosecuting alleged criminals,if they are running for office? Do you allow alleged child rapists or mass murderers go unscathed? From the caliber of top law enforcement officials I've seen in South Dakota,I'm guessing the safest people are alleged ne'er do wells.
I like Men's theory too.
Ken's.
Damn autocorrect.
Lanny,
Two comments:
1). A convicted felon can't serve and will be expelled.
2). On the big issue, we will have to agree to disagree. The potential for partisan mischief of a charge dropped at the 11th hour is greater than the risk in my mind of a criminal being elected. Arresting or charging political opponents is too prevalent in banana republics. I also think the innocent until proven guilty is too important to sacrifice. Keep in mind, I believe Bos to be a fraud, political and financially criminal.
"1). A convicted felon can't serve and will be expelled."
And so just like after the 2010 election, if Mike Rounds is the winner and gets found guilty of one of the many possible felonious crimes for which he could be charged, one has to presume that DD will be reelected, he gets to appoint which ever Republican he wants like he did with Dusty Johnson (for whom I voted) when he appointed Chris Nelson (for whom I voted in the primary), with no PUC experience furthering the appearance of an incestuous Republican party.
On your second issue, Troy, how will we ever know if the evidence cannot come out until after the election.
"1). A convicted felon can't serve and will be expelled."
And so just like after the 2010 election, if Mike Rounds is the winner and gets found guilty of one of the many possible felonious crimes for which he could be charged, one has to presume that DD will be reelected, he gets to appoint which ever Republican he wants like he did with Dusty Johnson (for whom I voted) when he appointed Chris Nelson (for whom I voted in the primary), with no PUC experience furthering the appearance of an incestuous Republican party.
On your second issue, Troy, how will we ever know if the evidence cannot come out until after the election?
I understand the banana republic concern but I'm also concerned that under Jackley's logic the rules on circulating petitions are meaningless. What happens if the rules are violated in a successful attempt to get a ballot measure on the ballot? Will the measure remain on the ballot and what if the measure passes? It would be impossible to convict a ballot measure of crime.
David Montgomery, the doppelganger of Harold from the Red Green Show (watch him on 100 Eyes today - that giggle/laugh! https://www.youtube.com/watch?v=dVZWobW6rGE ), is shilling for his hero Jackley on his blog tonight. Here's the deal, the complaint on Bosworth's petitions was made soon after she filed them. The complaints of failing to pay her employees have been around a lot longer. Where Jackley has an ounce of an excuse is the tight timetable of the primary if CH had made his complaint after the ballots were sent to the printer.
But the complaints were made sooner than that. Jackley sat on his ass and ran down the clock, which, of course, is the same strategy the Rounds campaign is employing.
Dave, you have been a consistent apologist for the power set in Pierre, a trait you probably picked up in that sad office at the Pierre Capital Journal. Pierre is a company town, and the company's name is The Governor's Office.
Dick Thein would fire people who were jaded, or slack, or not very bright. He's got to be spinning in grave to see the slackers at the Argus collecting their checks and writing stories that usually run in second place or third place behind the Rapid City Journal or KELO or WNAX. Or the Pierre Capital Journal.
Perhaps, when Jackley runs for Governor having been given unearned cover by the state's largest newspaper, he can hire you to write his press releases, just like Mitch Krebs. You'll double or triple your paycheck, but at least you can go home believing you got paid to do what people expect.
96 Tears,
And I am the only one who promotes conspiracy theories on this web site?
carpet bombing, sib? hypotheses are not theories.
So, am I to conclude that Jackley's investigation and prosecution, or lack there of, are only about the petitions in the Bosworth matter?
Jackley has enough evidence to prosecute her on all the other criminal acts she's committed.
There maybe a tiny bit of a legal question on voters making the choice of a candidate, but financial fraud should not be exempt from prosecution for any candidate.
By Jackley's illogically opinion, any candidate that makes the ballot is immune from prosecution.
When Sibby and Dave Montgomery come together to defend their bromance Marty Jackley ... well ... it just takes my breath away. Not that there's anything wrong with it.
Excuse me. I weep.
Roger said the magic word: immune. If I'm thinking of committing a really big crime, I should pick up a petition and file as an Independent for whatever office is available. I can thus delay my arrest and prosecution for up to ten months, giving me time to raise money, hide evidence, enlist a really good attorney, and/or arrange a foreign refuge.
As for enfranchisement, I'm not sure that issue applies anymore to Bosworth. Her name is on the ballot. People have probably already voted for her. The prosecution I advocate does not change that.
KELO reports that Richard Melanson of Spearfish faces child porn charges. If Melanson were on a ballot, would the charges have been delayed until after the election?
Cory,
I like your line of thinking, proving SD's wickedly evil corruption. It appears that Republican lawmakers were very crafty in incorporating a criminal immunity clause for themselves.
Some of the old dudes on Madville should join me in a major caper and than run for attorney general.
I see Jackley's reasoning for not pursuing charges at this moment, and can see the logic behind it. But, then - I think about the raffles. Months before the petitions for the primaries were due, that all came out. Where is the investigation back then, before the ballots were set? What exactly does the AG need to investigate possible crimes? It was only reported on KDLT, KELO, and in newspapers - not to mention many blogs and other news media. If I was to consider committing a crime, do I only need to announce my intentions on running for a public office to avoid prosecution for several months? Could I announce my intentions to run for city council, and commit white collar crimes during the time - and not worry about the public being aware of my misdeeds?
According to this logic, if I was to decide to pull a scam of some sort, and be called out on it - my first move would be to announce that I am running for the city council, or some other public office. It would buy me some time to cover my tracks, seek legal council, and even try to make good on some of the misdeeds I may (or may not, under advice of my attorney) have committed.
In a nutshell, Criminals, Scam artists, shady dudes - do your scams in an election year. You have more legal options and time to do what you do. Just make sure you take that petition out to run for your local school board.
Justice delayed is justice denied
Joe, I think you might reconsider committing that white collar crime and running for office, I assume you would have a D behind your name and not an R, that would be a big difference to the AG I'm sure.
Roger-what's your age limit for "old dudes"? If we include me,then we can make the crime interstate and get the FBI involved. Onliest remember from Ruby Ridge,"We are the FBI,we don't fire warning shots".
Cory and Joe,
I get your comments. And, should be considered. Bosworth is a hard case for me to defend with regard to not impacting an election. But, my gut is to err on the side of caution. The only exception is if evidence can be lost or tainted by waiting.
Mr. Montgomery finds there's all sorts of precedent for prosecutors delaying action against candidates to avoid the appearance of election interference.
Joe K raises a good question: where is the threshold for deciding to delay prosecution against a candidate? Does immunity start only when a candidate-suspect officially makes the ballot? Submits a petition? Circulates a petition? Declares candidacy? Declares an exploratory committee? Draws public speculation about a possible run?
On that line, Joe gets me wondering, when does the immunity end? Bosworth's immunity ends June 3 around 9 p.m. Central. What about Mike Rounds's? Suppose he survives the primary and wins the 2014 general. Suppose in his victory speech on November 4 he announces that he plans to run for re-election in 2020. Must Jackley and Johnson hold off on any prosecution until at least December 2020, for fear of influencing or disenfranchising those future voters?
Holy cow! Everybody! I hereby declare that I will run for office again. Someday, somewhere, I will give voters an opportunity to nominate me and vote for me for some public office. My name will appear on a ballot.
To avoid accusations of banana-republicanism, Marty Jackley cannot prosecute me. He can investigate the heck out of me, but he can't serve me or perp walk me or say one word about me until the voters have had their chance to vote for me. Let my rein of terror begin.
Troy, suppose the evidence is durable. But suppose the evidence points toward ongoing crime and additional harm done each day. Don't police have a duty to deter and stop crime as well as investigate and prosecute? Isn't swift prosecution an important part of deterrence?
I have to agree with Troy in a sense. I think the idea that an AG publicly bringing charges against a candidate that is in the middle of an election could smack of conspiracy. If you replaced Bosworth with Weiland and Jackley started "investigations" based on claims by a Republican, I think many of use would scream conspiracy.
The November ballot comment really concerns me. The election in question with Bosworth anyway is in June. I think the conspiracy thinkers would scream at the top of their lungs if all of the sudden an elected official was charged and then forced out allowing Daugaard to name the replacement.
Cory,
This is a hard line to walk. I don't support blanket postponing of prosecution (which is not immunity) nor indefinite postponement (ala 2020 example). I just think we have to acknowledge judgment must be made and personally I hope they err on the side of caution.
Take out a petition for office. Steal money. Chill out and go home. Or steal more money. There is no law enforcement when it comes to a special class of citizens, created by Marty Jackley. We call them candidates for elected office. Welcome to South Dakota.
Three other things:
1) I don't think anyone thinks Bosworth should be off the ballot more than me. I agree attitudinally with both Cory and Hickey with regard to their righteous indignation she is going to be on the ballot.
2) It is my experience that the "exception" makes bad policy/law. Bosworth is an "exception" that can tempt us into making a precedent that we might regret. Why give her that much long-term influence?
3) Whenever I've been indignant, I usually leave my brain in a box. Too often I get dragged to a place that just splashes on myself.
MJL, Jackley does clarify in his interview with Montgomery that he would consider Bosworth open for prosecution if she does not win the primary. Why he couldn't make that clear in his initial statement escapes me... and likely pains his high school composition teacher.
I agree, Troy, that Jackley draws a hard line to walk. And MJL puts things in perspective by asking that what-if about a Jackley prosecution of Weiland.
But consider: Jackley has announced that he is investigating Bosworth and Walker, certified candidates. Doesn't that announcement influence voters? I'm already using that announcement to beat Bosworth-bots over the head on Twitter. If officials want to abuse their power to sabotage candidates they don't like, Jackley's line against prosecuting candidates still leaves them plenty of room to do it. Jackley's line thus does not serve the main purpose by which we might justify it.
Most of us here are indignant that Bosworth is on the ballot. But we recognize that fight is over. She's on the ballot. Prosecution won't change that. But prosecution will stop crime. I have not yet seen the convincing case that candidates for public office in general deserve immunity from prosecution until after the election.
Most here would easily acknowledge what the attorney generals conclusions would be if this was a Weiland scandal,
Rick would be campaigning from behind bars without a question.
This Republican scandal is the pure definition of cronyism and corruption that keeps South Dakota in the top 5 states in the nation of most corrupt states. Pick any source, we're either #1 or #2 with regularity.
When Jackley doesn't enforce laws, particularly against Bosworth, he gives her a license to defraud voters and donors alike and not just in South Dakota.
If Jackley had an ounce of courage, he would issue a "Red Alert Scam Warning" to South Dakotans.
http://www.themudflats.net/archives/42893
Cronyism-Alaska style. Head of National guard,sits on sexual assault reports, gets promoted by good friend,Governor Parnell who was already aware of the reports.
mike from iowa,
There are no age limits on my candidate immunity planned caper.
Anyone that chooses to be an old dude or dudette are welcome
The one other requirement is that we have to announce our individual candidacy for attorney general.
Cory wrote: "MJL, Jackley does clarify in his interview with Montgomery that he would consider Bosworth open for prosecution if she does not win the primary. Why he couldn't make that clear in his initial statement escapes me... and likely pains his high school composition teacher."
Why? Because, like almost all high mucky-mucks in state gov't, Jackley's public pronouncements are written by someone else, a flunky who gets paid for doing just that. If Jackley is (lazy, busy, inarticulate) (choose one or more) he just scans the press release and says "Go with it."
If the flunky is not doing the job well or is kept in the dark as to Jackley's true purpose in issuing a statement, you are going to get obscurity instead of clarity. Far be it that anyone should suggest that Jackley might want obscurity in his pronouncements.
caheidelberger: Jackley doesn't say he's not going to investigate or even hold up anything just that he won't make it public or am I reading thus wrong? "mechanics of the review and the investigation, and if merited, any potential criminal action, are occurring," Jackley said. "We just aren't necessarily going to make things public because we don't want to interfere with an election."
West River,
The obvious should be clear, Jackley is as usual concealing a criminal investigation from the public, if he is even conducting an investigation.
To translate Jackley's statement, "I'm not investigating anything, I just say I am. There won't be any prosecutions of anyone before or after the elections. Justice goes beyond my Republican principals and the oath I took to protect the public".