South Dakota Attorney General Marty Jackley’s increasingly public offensive against the U.S. Department of Justice over its allegedly politicized handling of the EB-5 scandal appears to revolve around three thin points. As laid out in the two letters he has made public (our Attorney General can be very open when it serves his party’s purposes), AG Jackley is miffed about…
(1) The conduct of former DOJ attorney Anthony Phillips. In his October 3, 2014, letter to USAG Eric Holder, AG Jackley alleges that Phillips engaged in “aggressive” tactics, like “serving subpoenas on cooperating witnesses at their place of employment.” That aggressive service appears to relate to the DOJ’s service of subpoenas (without notice to AG Jackley, the letter notes with pique) on the Governor’s Office of Economic Development on March 8, 2013, “in relation to vouchers and the EB-5 program at Northern Beef Packers.” AG Jackley further alleges that Phillips skipped a July 8, 2013, meeting with GOED’s attorney Paul Bachand, South Dakota Division of Criminal Investigations agents, and the South Dakota U.S. Attorney’s Office. Finally, Jackley alleges that in August 2013, Phillips may have violated South Dakota attorney ethics Rule 4.2 by speaking directly to a party involved in the matter under investigation instead of that party’s lawyer.
Notice that this charge revolves entirely around one individual who no longer works for DOJ. The attack on Phillips makes no indication of political motives by Phillips himself or his superiors. And AG Jackley, really, are you telling me you don’t have any “aggressive” lawyers on your staff? If you don’t, you’d better do some hiring.
(2) The Department of Justice’s public comment on its GOED/EB-5 investigation. This point in AG Jackley’s October 2014 letter is more vague. He cites DOJ Assistant AG Peter J. Kadzik’s September 10, 2014, letter to the South Dakota Legislature’s Frame Benda (er, Government Operations and Audit Committee), in which Kadzik cited the DOJ’s general policy of not commenting on ongoing investigations. (Kadzik repeated this statement in a November 5, 2014, letter to GOAC.) AG Jackley says DOJ seems to have violated that policy with “its open subpoena process and witness interviews” which “resulted in substantial publicity centered around a federal investigation.
AG Jackley gets his facts wrong here. The DOJ made no public fuss about its EB-5 subpoenas. Governor Dennis Daugaard announced the federal investigation of GOED and EB-5 on October 30, 2013, the day after former GOED chief Richard Benda’s family buried him. The DOJ has not publicized interviews from the GOED/EB-5 investigation; we’ve only heard about that from interviewees who have chosen to speak to the press.
(3) The Department of Justice’s failure to respond. In the big ironic twist of the week, AG Jackley complains in his February 2015 letter that the Department of Justice won’t tell him what’s going on. Evidently DOJ had not yet sent any reply to AG Jackley’s October 2014 letter, so he wrote again. “As you know,” writes Jackley, “the appearance of political motivation can affect our citizens [sic] overall trust in the integrity of investigations. Law enforcement and the people of South Dakota deserve better from our Department of Justice.”
Yes, just as we deserve better from an AG’s office that refuses to share with the press the evidence that led it to the improbable conclusion that Richard Benda killed himself with a shotgun blast to the abdomen (initially reported as “a bullet hole in his side“).
Just as we deserve better from a Division of Banking that refuses to tell us whether it is taking steps to collect the millions in bank franchise tax that EB-5 player Joop Bollen pocketed instead of remitting to the state.
Just as we deserve better from a Legislature that convenes a show trial on EB-5, refuses to subpoena key witnesses, and joins the Attorney General and the Governor and a former Governor turned Senator in promulgating the politically advantageous narrative that all blame for ills in EB-5 rest in the grave with Richard Benda.
We all deserve better, don’t we, Mr. Attorney General? Richard Benda‘s family deserves better, don’t they?
The Department of Justice is investigating possible crimes with no greater degree of secrecy than AG Jackley has claimed proper for himself. The DOJ has created no politically advantageous narrative. Republican officials of the state of South Dakota, however, have crafted propaganda about those possible crimes to keep their fat out of the fire. AG Jackley is adding to that propaganda with a continued effort to say the real criminals here aren’t the criminals in the GOED/EB-5 scandal but the Department of Justice officials who would dare investigate them.