Bob Mercer knows how to strike when the iron is hot. The South Dakota journalist asked Attorney General Marty Jackley to release the records of his investigation of Richard Benda's suspicious death last December. AG Jackley rebuffed Mercer on extra-legal pretense and got a state hearing examiner to back him up last May.
Now, just as the EB-5 scandal, which was torn open by Benda's death, begins to rain real fire on Jackley's political pals, Mercer shovels more coals into the furnace with a lawsuit to get the Benda death investigation records.
How a court will rule is up in the air. But for those of you keeping score at home, Mercer's lawsuit has already caused Jackley to commit two unforced errors in the form of two unnecessary and absurd statements.
First, Jackley claims to be a champion of openness:
"I would have been operating within my statutory authority to just flat-out deny access, and I did not do that," Jackley said. "I chose the route of openness and have been nothing but criticized for that" [David Montgomery, "Lawsuit Seeks Access to Benda Death Reports," that Sioux Falls paper, 2014.08.22].
Openness? Openness?!Please, Marty, don't hurt yourself. And the rest of you, don't hurt yourself laughing.
Second, while Independent gubernatorial candidate Mike Myers engages in a macabre re-enactment of Benda's death based on an allegation that Myers himself admits is "an undocumented, unsupported assertion," AG Jackley responds with an incredibly injudicious walk-back of his conclusion on Benda's death:
Jackley said he is confident in the suicide ruling but declined to expand on any evidence that supports that ruling except to site the number of entities involved in investigating Benda's death. The suicide ruling itself was made by a forensic pathologist, not by him or his investigators, Jackley said.
"I never said specifically it was a suicide. I said our findings are consistent with the cause and manner of death determined by the forensic pathologist," Jackley said [Denise Ross, "Gov. Candidate Doubts Benda's Death a Suicide," Mitchell Daily Republic, 2014.08.20].
Jackley's statement is factually, technically true. I noted the absence of an explicit declaration of suicide in Jackley's own words last November when he released the state's report on Benda's death. But why give the doubters and blog sensationalists who so grate his cheese with their speculation and misinformation a line like "I never said... it was a suicide"? The Attorney General has gone from saying "there are absolutely no credible facts or evidence calling into question" the suicide ruling to opening the door for Sam Kephart to come back and talk about the Chinese mafia.
Doubts linger, but the press has mostly adopted without caveat the interpretation that Benda committed suicide. Governor Daugaard has said Benda committed suicide. Why say any little thing to back away from that mostly accepted fact?
People say stupid things for a variety of reasons. Stupid people say stupid things, but I think we all agree Marty ain't stupid people. People may be tired from an exhausting statewide blog tour, but Marty is no blogger.
People also say stupid things when they are scared, under assault, and stressed out. And you know, with a political scandal dominating the news and the debates, with his pals and his own office getting bad press, with the ACLU and his buddy U.S. Attorney Brendan Johnson challenging South Dakota's Indian Child Welfare Act violations, Attorney General Marty Jackley just might feel a little harried.