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AG Pushes Against Jackley-Benda Alignment in Mercer Open-Records Argument

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.

Mercer brought his open-records case to the South Dakota Supreme Court yesterday. In his brief to the court, Mercer offers the following background:

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.


  1. mike from iowa 2015-03-25 10:33

    I don’t know who did what to whom or even if anybody did anything to anyone,but,I can assure you that no one in South Dakota’s gubmint,past or present, are any of the ones that I can’t remember. Now I hope that clears this little EB-5 misunderstanding up.

  2. larry kurtz 2015-03-25 10:40

    Unfortunately, after the GOP-owned SD Supremes block access to Bendagate records Mercer is too broke to appeal.

  3. David Newquist 2015-03-25 11:38

    You can be sure that the Supreme Court will fall back on the state’s defective legal code to cite a law giving discretion to the AG, as it did with the Taliaferro request for expungement. A basic question concerning the privacy issue is what matters in Benda’s death could be revealed that would affect family members more than the known fact that they were related to him? The piling on of state officials claiming him as the sole culprit is more invasive than any details about the circumstances of his death could be.

    There are many aspects of the whole EB-5 matter that state officials hope to “bury with Benda,” a phrase that seems to be the official state song at this point. In your prior post on the retiring Regents’ executive secretary, the dissembling statement hums with that refrain. When Warner talks about conflict of interest and management of that conflict, one must ask just what interests came into conflict? How did a person who was a regents’ employee come into conflict with the regents? A strong clue is in the testimony of the former dean of the business college at NSU when he was asked why he knew nothing about Joop Bollen’s activities. He said he understood that, although Bollen was listed as an employee of his unit and paid with NSU funds, Bollen was responsible to the governor’s office, which implied Richard Benda. But, as a regents’ employee, how did it get established that the regents’ administration had no authority over Bollen’s activities? That conflict of interest begins to appear as a contrivance to cover up the regental role in this entire matter, which adds a verse or two to the Bury with Benda fandango. One would never dare to utter the word Jewett because it jars against the Bury with Benda alliteration.

  4. mike from iowa 2015-03-25 12:36

    Larry k-A bombing range? What? The AP says, “A proposal to establish an enormous bomber training area over the Northern Plains that advocates say will improve military training and save money got final approval Tuesday despite concerns about loud, low-flying aircraft disrupting civilian flights and damaging rural economies. The Federal Aviation Administration confirmed that it approved a plan to expand the Powder River Training Complex over the Dakotas, Montana and Wyoming. The move nearly quadruples the training airspace to span across nearly 35,000 square miles, making it the largest over the continental U.S.”

  5. larry kurtz 2015-03-25 12:53

    Linking the expansion of the Powder River Training Complex to Bendagate will take some time, mike: give me a few minutes.

  6. Douglas Wiken 2015-03-25 13:41

    While SD Republicans are trying to use privacy rights to protect their own rear ends, Republicans in Washington are trying to undo science research by demanding the personal health records used as data should be released to those Republicans for their own analysis. Noem voted to add more industry “scientists” to EPA boards and prevent researchers from such terrible institutions such as Harvard, Yale, etc. It is a fair comment to suggest that they just don’t like the results of that research because it does not fit well with the assertions of the polluters, contaminators, fossil fuels, etc.

  7. Les 2015-03-25 14:54

    Our three musketeers applaud the fact general aviation will be hit in the chops along with all the other dynamics of our livestock industry. This is the payback for keeping Ellsworth open.

  8. Joan Brown 2015-03-25 17:52

    Les, I agree with you.

  9. Owen 2015-03-25 18:15

    I see that rwb. maybe Marty has thin skin. I hope so.

  10. Owen 2015-03-25 18:26

    I also see Jackley reads the Dakota War Toilet. SMH
    Wonder if if checks you out Cory?

  11. Deb Geelsdottir 2015-03-25 22:44

    West River ranchers will love having bombers flying over their cattle and sheep. It’s nice that SD’s congressional delegation is so focused on the well being of their constituents.

  12. Les 2015-03-26 14:51

    Very good, Tara.

  13. tara volesky 2015-03-26 14:56

    Thanks guys. He told me he’s got a good chance to work for either Elizabeth Warren or Bernie Sanders. Hey Sibby is running for school board……….Dr. Graves biggest nightmare. lol

  14. mike from iowa 2015-03-26 16:23

    Deb,it is pretty smart to let the USAF and National Guard fly recon over livestock and keep coyotes at bay at no cost to the ranchers. Cattle aren’t noted for having wits and sheep is worse.

  15. bearcreekbat 2015-03-26 17:04

    Congrats Tara – you guys must be so proud!

  16. Roger Cornelius 2015-03-26 21:27


    Let me know if Sibson has any opposition, I will happily make a contribution to anyone who opposes Sibson.

  17. Deb Geelsdottir 2015-03-26 23:00

    Mike, I know from personal experience on the farm that sheep are Incredibly Stupid! I think even chickens are not as stupid. Even chickens.

  18. mike from iowa 2015-03-27 08:34

    You are so right,Deb, and funny too still yet.

  19. caheidelberger Post author | 2015-03-27 10:24

    Owen, I’m not terribly surprised that Jackley would dignify his party’s spin blog with mention. DWC is part of the system that keeps him in power. But notice that DWC can’t offer any intelligent analysis of the Attorney General’s response to the Mercer suit.

  20. Jana 2015-03-27 18:03

    PP’s silence is deafening…or is it defining?

  21. larry kurtz 2015-03-27 18:11

    Marty has a long wait before he becomes relevant to justice just as PP has a long wait before he is relevant to journalism.

  22. Jana 2015-03-27 18:43

    I just know how we can expect Marty to do his job when he’s so busy running for his next one…poor guy. Those thank you letters take time. Not to mention all of his posturing with lawsuits against the policies of The President of These United States to keep the low information base salivating.

    One just has to wonder if on his resume or CV he lists politician first or AG. Also makes you wonder if he had his fingers crossed when he took his oath of office.

  23. Jana 2015-03-27 18:46

    Shorter version. Marty is holding his office to get his next one and not to serve the people by being the leader for justice in South Dakota.

  24. caheidelberger Post author | 2015-03-27 18:54

    Jana, I’m surprised that Pat hasn’t been commenting, since Marty sent him that love note.

    I want to see the death record. I want to know the AG did his due diligence and came to the most reasonable conclusion based on the evidence at the scene rather than dropping the ball as Mercer alludes in other portions of the EB-5 mess. I’m just not sure that argument is sufficiently grounded in law to win a Supreme Court overturn.

  25. Jana 2015-03-27 19:22

    Actually, I think the realists in all of us understand why Marty won’t pursue EB-5 when his benefactor is a key player and he would be viewed as a traitor to his party.

    I also think we all understand that would take courage…and isn’t that what we want in our AG who swore an oath to justice…shouldn’t our AG have that courage and commitment to justice?

  26. leslie 2015-04-03 15:49

    dn-good post. as a suicide survivor, however I disagree, the red herring chase after getting the gory details are nobody else’s business. let’s go after Regent’s, NSU, GOED, GOAC, Ledermann, Rounds, Daugaard, Joop and all the lawyers, government and private, paid with EB5 proceeds that have pieces of the story. atty/client privilege is protecting the cover-up for SDGOP.

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