Want to know how toxic Richard Benda has become among South Dakota’s leaders? Consider this exchange in the documents related to reporter Bob Mercer’s effort to get Attorney General Marty Jackley to release records from the state’s investigation of Benda’s October 2013 death.
In 2009 [Governor Mike] Rounds appointed the attorney general. He served with Benda for approximately two years in the Rounds government and subsequently won a full term in the 2010 election. The attorney general undertook investigation of Benda at the request of Gov. Dennis Daugaard’s counsel in spring 2013 after a federal grand jurt reportedly subpoenaed information from the Daugaard administration. A major EB-5 project, the Aberdeen beef plant, shut down in summer 2013 and declared bankruptcy. The attorney general provided his report reagarding EB-5 program matters to the U.S. attorney after Benda’s death. A California arbitration hearing in 2014 regarding one set of events in South Dakota’s EB-5 program showed the attorney general and his office knew about EB-5 activities and were involved in legal defense of the program with the state Board of Regents since 2009. As of October 22, 2014, one year after the body of Benda was discovered, neither state prosecutors nor federal prosecutors had brought any charges [Robert Mercer, brief to South Dakota Supreme Court, 2014.11.04, p. 11].
Mercer includes this passage in his brief to reinforce the public interest in the Benda case and, perhaps too subtly to win in court, suggest the interest AG Jackley may have had in concealing information about Richard Benda’s death. Even this Mercerian understatement provokes a testy response in the brief from the Attorney General’s office:
…Mercer’s statement that the Attorney General “served with Benda for approximately two years in the Rounds government” (MB 11) is simply not accurate. The Attorney General is a separate constitutional officer, who has now been twice elected, that heads a constitutional office that is separate and independent from the control of a governor [Assistant Attorney General Jeffrey P. Hallem, brief to South Dakota Supreme Court, 2014.12.10, p. 8].
Marcer may stretch the timing—Jackley received his appointment in August 2009 and served for less than a year and a half before winning his office in the 2010 election—but his statement seems perfectly accurate. Form September 2009 to January 2011, Marty Jackley owed his job to Mike Rounds as much as Richard Benda did. Jackley and Benda both served in the Rounds government.
This exchange seems unlikely to weigh on the Supreme Court’s decision on the public nature of the Benda death investigation. But the AG’s sharp response to what could be read as a side comment suggests that folks in Pierre are really sensitive to being associated with Benda, the chosen fall guy for the EB-5 scandal.