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Warner: State Afraid to Act Against Bollen and Lose His Cooperation in Lawsuit Fight

Last updated on 2016.09.05

Among the highlights from the Government Operations and Audit Committee hearing happening right now on the EB-5 scandal, Board of Regents exec Jack Warner provides the first direct answer we've heard as to why the state didn't fire EB-5 czar Joop Bollen for his multiple violations of Regental policy and state law in 2008 and 2009. "If we were going to mount a successful defense" in the Darley litigation, "we needed to rely on Mr. Bollen's testimony."

Recall that in August, the Regents, the Attorney General, and the Governor's Office told us that Bollen got no immunity deal, even though he had pressed for one. But today, Warner is implying that in 2009, Bollen got something like immunity from firing in return for his help in beating back the Darley lawsuit. Does the need to beat Darley also explain why the state granted Bollen his private contract to run EB-5 for personal profit after 2009?

Attorney General Marty Jackley says he never granted Bollen immunity from prosecution, but Bob Mercer reported yesterday that Jackley apparently granted Bollen immunity from interrogation. AG Jackley told Mercer, "I did not meet with Mr. Bollen personally either during or after the investigation, nor have I talked with him." Mercer reported AG Jackley's statement that he had spoken with federal investigators and reviewed the information they received from Bollen. Incredibly, though, AG Jackley has never seen fit to conduct his own inquiry into Bollen's state-level misdeeds.

Strangely, AG Jackley felt the need to repeat himself today in a press release. Let me quote in full, so there is no misunderstanding:


Pierre S.D. - Attorney General Marty Jackley confirms that on more than one occasion Joop Bollen voluntarily agreed to be interviewed by law enforcement authorities acting in joint cooperation. This has been set forth in both Joop Bollen's recently filed responses to GOAC questions and the testimony of the Attorney General to GOAC on July 29, 2014. Both the Division of Criminal Investigation and the Attorney General's Office have received Joop Bollen's interview information from federal authorities, along with voluminous other witness information as part of cooperative law enforcement efforts some of which were completed by DCI, FBI or both agencies jointly. Based upon all of the investigation information, the Attorney General authorized moving forward with state criminal charges as more fully set forth in the criminal complaint and arrest warrant drafts of October 8, 2013, as provided to GOAC [South Dakota Attorney General's Office, press release, 2014.11.13].

In one of its rare allusions to EB-5 (an affair that has received minimal attention, investigation, or analysis from Pat Powers), the GOP spin machine claims that this press release "refutes" Mercer's claim that AG Jackley didn't interview Bollen. The GOP spin machine then dismisses the Mercer article as "shenanigans."

This assertion from Powers is problematic on many fronts.

  1. Bob Mercer makes no claim. He quotes Attorney General Marty Jackley directly. AG Jackley says (let's repeat it, to be clear), "I did not meet with Mr. Bollen personally either during or after the investigation, nor have I talked with him."
  2. The AG's press release does not refute anything Mercer reported. The press release says the AG received information from federal authorities. The press release does not say the AG spoke or met with Bollen. The press release does not say Mercer misquoted Jackley. The press release has no refutatory power against anything Mercer said (or for that matter, anything I said in my follow-up blog post on the topic).
  3. AG Jackley and the GOP gain no apparent advantage from making this claim. Saying Bob Mercer got his facts wrong just for fun is a bad idea, especially when one has no information to call into questions the facts he reported. The AG's press release only emphasizes the fact that he didn't do his own work on the EB-5 investigation. Yes, the DCI has apparently worked in conjunction with the FBI. But AG Jackley's convoluted verbiage here suggests that he has ignored an opportunity to do basic law enforcement and turn the heat up himself on a main player in a potential scam.

Attorney General Marty Jackley has acted shockingly incurious about Joop Bollen's clear violations of law, policy, and public trust. BOR's Jack Warner suggests that Bollen brilliantly boxed state officials into a deliberate incuriosity that let Bollen continue what smells more and more like a scam for personal profit.


  1. 96Tears 2014.11.13

    Is AG Jackley also recanting he prepared felony counts against the late Richard Benda and was arranging a grand jury at the time of his death Oct. 20, 2013? Is he again changing his story on Benda’s violent and mysterious death in that lonely shelterbelt? Maybe Jackley should just come clean and admit he’s done nothing about the Rounds Racketeering Scam, except to run political interference against the press and Democratic legislators seeking answers. He succeeded only with helping Rounds run down that clock.

  2. jerry 2014.11.13

    Law and order republicans are silly rabbits with only one thing in mind, to steal from your garden.

  3. Jana 2014.11.13

    Oh Marty,

    Sir Walter Scott called and left a message.

    “Oh, what a tangled web we weave...when first we practice to deceive.”

    Can you call him back?

  4. caheidelberger Post author | 2014.11.13

    This press release feels like Jackley's strange statement in August in which he hedged on the declaration that Benda's death was suicide. Jackley seems to commit these strange, unforced errors, making statements that unnecessarily shift the narrative and only create more suspicion.

    The constant shifting of the narrative, as well as the growing inconsistency among all the statements from Rounds and now Bollen, suggest that there really is a scam here. Jana and Sir Walter Scott are absolutely correct: telling the truth is easy. Hiding it gets complicated. And Jackley's, Rounds's, and Bollen's statements have persuaded me more strongly than ever that they have something to hide.

  5. John Tsitrian 2014.11.13

    This is a truly weird and gratuitous press release, as all it does is confirm--what idiot thinks it refutes anything?--what Mercer reported. That's the gratuitous part. The weird part is that it highlights the AG's unwillingness to go full bore into investigating this thing, just characterizing DCI's involvement as "cooperative," not pro-active.

  6. larry kurtz 2014.11.13

    Even GOAC learned today just how tawdry the whole Bendagate scandal highlighted the results of its own corrupt ALEC-tainted lawgiving.

  7. caheidelberger Post author | 2014.11.13

    Good point, John. "Cooperating" with authorities is what the boss says when someone in his office is caught doing bad things and he's trying to deflect blame.

  8. 90 schilling 2014.11.13

    I did not have sex with that woman. I did not say suicide, it was ruled as an apparent suicide. Poor Richard. Maybe he is the only good guy in the game. No coming clean for the players in this game, too deep now. Whoooee, this train is picking up speed now.

  9. mike from iowa 2014.11.13

    I guess the Jackal had to say something,as splendidly silly as it is,it is something. Don't blame you,don't blame me-blame the guy with the gun tied to a tree.

  10. mike from iowa 2014.11.13

    I am incompetent,but what does that say about South Dakota voters?

  11. WayneF 2014.11.13

    So what exactly ARE the duties of the Attorney General? Will someone please require Marty Jackley to do his job? Should his name also be added to list of potential indictees?

  12. mike from iowa 2014.11.13

    John T-two working days have come and gone and no word on EB-5 job stats for SoDak from USA Gov website,yet. I guess the runaround is on the way.

  13. John Tsitrian 2014.11.13

    Thanks mfi. I'm exhaling my held breath, lol.

  14. Jim 2014.11.13

    "Law enforcement authorities acting in joint cooperation". Marty, would that be your guys, just the Feds, or both?

  15. Roger Cornelius 2014.11.13

    Mike Rounds is in D.C. this week for his senate orientation,
    anybody have the names of the current members of the Senate Ethics Committee so that we may starting forwarding the results of Cory's investigation, starting with his post about Benda's suspicious death.

  16. John Tsitrian 2014.11.13

    Also the press release clearly says that DCI and the AG's office "have received Joop Bollen's interview information from federal authorities." Not a word in there indicating that state authorities conducted an interview.

  17. Troy 2014.11.13


    1) Law enforcement (fed, state, local) cooperate and divide the responsibilities of joint investigations. In fact, in my office building is a joint fed, state and local law enforcement group. Despite their political differences (evidenced last night at the Law Enforcement banquet), Johnson and Jackley have mutual professional respect. Not to mention as a taxpayer having unnecessary duplication, what would Jackley saying he needs to double up Johnson's work do to that respect?

    2) What would you guys think of the credibility of the investigation if Johnson and Jackley had decided that the principal investigator would be Jackley and Johnson's office would just read the reports? It is ironic that this blog is taking the position that Jackley should be in charge of the interviews because again, out of professional respect, it is doubtful both would do it.

    3) At the end of the day, this is mostly about a federal program. It would be odd for another governmental level to claim principal jurisdiction or responsibility. And that oddity would light up this blog.

    The election is over. Let the process work so justice can be served. Unless of course, your goal isn't justice but instead a political assassination.

  18. Steve Sanchez 2014.11.13

    Why did the FBI forward documents related to their investigation of possible criminal activity associated with the execution and management of a federal program to the state AG's office in the first place? Did the AG request those documents or did the FBI forward them to the his office after uncovering criminal activity at the state level? Is it standard practice to turn the findings from a federal investigation over to a state's AG?

    Whatever the case, it appears Jackley is content to wait and see what it is the Feds know and what they don't.

  19. jerry 2014.11.13

    Troy, bless your heart. You go on about this being a federal program with just a footnote on how it is "mostly about a federal program". The crap hit the wall at the state level Troy, even my cat knows when he missed the litter box. So this is about more than just the EB-5 federal deal, it is about how your boy Mike Rounds, his lt. Daugaard and their AG's were involved with this scam along with Bolleen, Benda and others. Simple stuff to go after if you really wanted to.

  20. John Tsitrian 2014.11.13

    Troy, as a South Dakota resident I find Jackley's deferral to federal authorities on this to be, first, a weak show of consideration for South Dakota's interests, and second, a rather lame reaction from a state that prides itself on holding local authority paramount to federal involvement in our affairs. Are you saying that when it comes to wetlands regulations that federal intrusion is no good, but that when it comes to investigating an allegedly serious breach of both state and federal statutes that federal intrusion should be welcomed?

  21. Troy 2014.11.13


    I have profound respect for the professional integrity of law enforcement (sheriff/police, DCI, Tribal, and FBI), the prosecutorial arms (AG or Federal Attorney, and the judges (local circuit, state Supreme Court (mostly if not all Republicans, and Federal (both Dems) in SD.

    The election is over and I trust them to pursue Justice and will accept where it leads.

  22. Jana 2014.11.13

    Troy, we just want Marty to do something besides grandstand and carry water for the party.

    The information coming out of his office is like a Rubik's Cube to figure out what he and his tax payer entrusted office have done or not done...

    Marty seems to know who he works ain't the average South Dakota or the people who have been harmed.

  23. Roger Cornelius 2014.11.13

    Troy, are you absolutely 100% sure that U.S. Attorney Johnson is handling this on behalf of the federal government?
    What Troy so blithely calls a political assassination is really a search for truth and justice, unless of course there is something wrong with that.

  24. Jenny 2014.11.13

    You don't think that there could perhaps be a partisan tilt to some of them running the show here, Troy?

    Heck, Janklow scared the shit out of the boys running the highways all those times when he should have been ticketed. No wanted Wild Bill on their ass.

  25. Jenny 2014.11.13

    No police officer wanted Wild Bill mad at them. (meant to say)

  26. Jana 2014.11.13

    Troy..."The election is over..."

    You of course know that the distrust of Jackley's office comes from his stonewalling before the election...right?

    Given the importance and gravity of an election, wouldn't you think that someone who the voters have entrusted to enforce justice would be more aggressive in finding and disclosing the truth?

    Oh, that's right. Rounds was the man who gave him his office in the first place.

  27. Roger Cornelius 2014.11.13

    Is Marty Jackley handling the investigation of the EB-5 scandal or has he assigned it to a subordinate? The conflicting comments from the AG's office leave to believe that someone other than Jackly might be handling the state's case, if they have one.

  28. John Tsitrian 2014.11.13

    Troy, your affirmation of faith in the system is admirable but doesn't answer the questions I posed.

  29. 96Tears 2014.11.13

    We get it, Troy. The election is over. Duh! Your pal Rounds ran down the clock and his campaign and the political appointees in Pierre delayed, obstructed, lied and deflected every step of the way so he could advance his political career. The bums tossed the credibility of this state's justice system under the bus to get past the election, and now the game is to quietly release, very slowly and carefully, whatever other details can be released so they don't get headlines.

    Yes, Troy, the election is over, but not your pals' campaign to screw over the state, fill their pockets and quietly get away with it so they can keep doing it. They just want everybody to go back to sleep ... and forget.

  30. Troy 2014.11.13


    I sure hope that the AG has assigned the work to both a subordinate attorney and the Division of Criminal Investigation. His office (multiple divisions and responsibilities) maybe has 20 attorneys in it and DCI as many investigators and well over 100 employees. His job is to provide oversight and management and not handling specific cases (at least not before they actually go to court). I also hope that Johnson isn't personally handling the case at the federal level. If it were so, they would do nothing else. White collar crime is certainly a lot harder than prosecuting a minor for consumption of alcohol.

  31. Troy 2014.11.13

    John, I guess I don't see the connection between whether federal regulatory intrusion and inter-governmental cooperation on a criminal investigation.

    I might have political disagreement with Johnson or even maybe Jackley but I don't doubt their integrity and I seriously doubt either of their ability to garner the conspiratorial cooperation of their lawyers and investigators in their stead. If either had that capability, they'd be using that nefarious skill on a lot bigger fish.

  32. larry kurtz 2014.11.13

    USA Johnson will be nowhere near an indictment of the Rounds and Daugaard administrations.

  33. John Tsitrian 2014.11.13

    Troy, I guess I don't see why Jackley hasn't brought the full force of his office into a stops-out investigation into a matter that involves state officials telling contradictory and conflicting stories about just what happened to cause the state of South Dakota to lose millions of dollars, either directly or through stiffed contractors, employees, suppliers and taxpayers through litigation costs and state-funded grants. That Jackley and his office haven't directly interviewed Bollen seems an egregious dereliction of duty. As a South Dakota resident I'm deeply disappointed and disturbed by Jackley's willingness to stand aside while federal authorities take charge of the investigation and South Dakota's offices assume a "co-operative" position. Many, many South Dakotans have clearly defined losses as a result of NBP, and I don't believe that Jackley is pursuing justice in their interests.

  34. Troy 2014.11.13

    I get so confused when I come here. If Jackley was the unscrupulous and incompetent and lazy AG everyone accuses him of being here, why would you even want him or DCI even close to the investigation?

  35. jerry 2014.11.13

    Of course you get confused Troy, that is why you get the big moolah for being that guy. It is really not so hard to figure out, the rest of us have.

  36. Jim 2014.11.13

    Troy, you presume the Feds investigation is covering the state's Interests and they are not. Marty is trying to give Joop a pass so mike, sveen, Harvey and others aren't implicated. The whole thing is a colossal, offensive embarrassment to the entire state and you know it.

  37. Jim 2014.11.13

    Ha...meant "and it is not"

  38. caheidelberger Post author | 2014.11.13

    Troy, Jim offers an important part of my response. How can the AG delegate the investigation of violations of state policies and law to the feds? Conflict of interest, bank franchise tax, risk management policy, improper issuance of contract... none of that is in FBI's jurisdiction, is it? Those violations have to be investigated by state officials, right?

    Unscrupulous, incompetent, lazy—I understand your confusion, Troy. I don't like having to turn to Jackley for this investigation, but who else has the authority to do it? I lack confidence in Jackley's willingness and ability to perform his job, just as I lacked confidence in Secretary Gant's. But I call on Jackley to rise above his weaknesses, do his job, and do it well. (Is that a sufficiently consistent position?)

  39. Bill Fleming 2014.11.14

    Hypothetical: If a special prosecutor were to be appointed to act on our state's behalf in this case in an effort to ensure objectivity and political neutrality, who would that person be, and who would make the appointment?

  40. caheidelberger Post author | 2014.11.14

    Bill, any attorney representing the state must be granted special attorney general status by the attorney general himself. If the special prosecutor is representing the state, Jackley must approve, right?

  41. mike from iowa 2014.11.14

    For Roger C-

    For Troy,if the jackal had any integrity he would have recused himself instead of clearing Rounds from the very beginning. This stinks of cover up. Jackley actually believes his job is to protect wingnut pols instead of protecting South Dakota's best interests.

  42. mike from iowa 2014.11.14

    Pam B,sorry I duplicated your post. I did not see it.

  43. Troy 2014.11.14


    Yes, much of what you list are state crimes. But, if there are greater crimes or the fed investigation gets most of that info, the state can clean up the missing parts later.

    Here is the deal for me: I had a friend who went to a really bad place and died. I want justice for anyone who helped him get there. I want law enforcement to follow their normal protocol because that is what they have found works. The election is over, white crime is hard to prosecute and requires meticulous work, and we should let them do their job.

  44. John Tsitrian 2014.11.14

    What do you mean by "let them do their job," Troy. Are you asking the media and the blogosphere to stand aside and shut up?

  45. larry kurtz 2014.11.14

    Mr. T, Troy believes in virgin birth and and transubstantiation: why would he not believe that Benda's guardian angel fell down on the job?

  46. John Tsitrian 2014.11.14

    Thanks, mfi. If CH's understanding that a special prosecutor's appointment has to come from the AG, I'd say the matter is settled. There won't be a SP.

  47. caheidelberger Post author | 2014.11.14

    Troy, you offer a fascinating perspective. What you say about state officials standing back to let the feds fry bigger fish sounds perfectly rational.

    But let's be clear: to accept that AG Jackley is acting responsibly requires us to assume that bigger crimes were committed, that EB-5 matters, and that Rounds could be in big trouble.

  48. caheidelberger Post author | 2014.11.14

    Larry, no commenter's religious beliefs are on trial here.

  49. larry kurtz 2014.11.14

    You're right, Cory: Benda, a catholic, not only committed a crime but also a mortal sin by allegedly taking his own life. Jammer is trashing Troy for being arrogant and thick-headed: who am I to argue that logic?

  50. mike from iowa 2014.11.14

    Troy,wasn't it a deputy coroner who was appointed to investigate the crime scene(the deputy coroner does not have to be trained in investigations) and also did the autopsy instead of the State's Medical Examiner. How is that protocol and/or doing their job?

  51. mike from iowa 2014.11.14

    The only "clean up" the state seems interested in is sweeping everything under the rug.

  52. caheidelberger Post author | 2014.11.14

    Before I let Troy off too easily, I should note that the excuse we are trying to carve for Jackley, that he could be holding back on prosecuting state crimes to allow the feds to proceed with prosecuting even bigger federal crimes, is valid for any actions or inactions by Jackley since March 2013. What about 2010, when Jackley came to office and would have been briefed on the Darley–SDIBI litigation? What about AG Larry Long in 2009, when the state demonstrated its knowledge of the illegal SDIBI–SDRC Inc. contract by ordering Sherry Anderson to audit SDIBI? No federal investigation was going on then. Troy, why wouldn't AG Long or AG Jackley have looked into Bollen's violations of state policy in 2009 and 2010?

  53. leslie 2014.11.14

    politics my man. republican attorney generals either are conflicted (i assume their client is the State of SD), or would not investigate their "bosses" rounds and daugaard. this will all turn out as a good civics lesson, like bush v. gore, the AHCA lawsuit that roberts pulled the plug out of medicaid expansion, citizens united, impeachment of bill clinton over blow-jobs (yes I know he then lied), the OJ i have said before, "lawyers do pretty big (good) things." except when republicans are in charge. no ethics in corporatism.

  54. Randall 2014.11.14

    So the moral of this story is:

    Steal Big.

    IF you can steal or otherwise misappropriate
    then you become too wealthy to prosecute.

  55. Disgusted Dakotan 2014.11.14

    Correct me if I am wrong, Jackley has stated that HIS office hasn't given Bollen immunity; however, it does not appear that he has clarified whether the Feds have or not. If the Feds have, it would explain many things, especially the state taking a hands-off investigative approach to interviewing Bollen on state jurisdiction crimes, and the over the top generous comments towards Bollen by the obvious players in this corruption.

  56. leslie 2014.11.14

    troy, can you tell us who knows what the Koch brothers and affiliates have been up to in SD?

    we too have concern that our government works for all the people and does not let malfeasance off the hook. we have friends and loved ones that the system steps on daily under the existing values of repubican, unchecked, selective, political prosecution/non-prosecution that occurs in this state.

    we try to fix this with fair elections. Kochs' have a different approach.

  57. Roger Cornelius 2014.11.14

    I wonder who Troy's "bigger fish" are, who's next in line after Bollen now that Benda is no longer the target of any investigation?

  58. Roger Cornelius 2014.11.14

    Yes, white collar crime is extremely hard to prosecute and gain convictions, is that because our Republican dominated legislature fails to write and pass legislation to give greater oversight and transparency to the public, state reporters, and bloggers.
    Why haven't the Republicans put forth more effort to contain abuses in state contracts and have a legal recourse when fraud occurs?
    Troy, you'll find that white collar criminals usually don't get convicted for the actual theft of money, they are more likely to get convicted of lying to a grand jury, lying to investigators, destruction of evidence, and perjury.
    If Al Capone were still around he would tell us that he was never prosecuted for murder or any violent crimes, but it was that pesky IRS that got him.

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