Last updated on 2018-04-26
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.
“Jackley alleges that Phillips engaged in ‘aggressive’ tactics, like ‘serving subpoenas on cooperating witnesses at their place of employment.'”
That’s funny. Prosecuting attorneys at state and local levels revel in embarrassing people by serving subpoenas on them in front of as large an audience as possible.
It’s also funny that it comes from the guy who feels no remorse about ruining the career of a former prosecutor (Brandon Taliaferro) who went to the dark side and actually sought justice.
“AG Jackley complains in his February 2015 letter that the Department of Justice won’t tell him what’s going on.”
What a hypocrite! Funny Marty, we the people are complaining of the same thing about you!
He’s just posturing for a future election.
Masters of coverups like to ‘expose’ truth tellers. It is psychological therapy.
This must signal charges are going to be made public. Jackley is a joker who’s used his powers to shield the crooks in Pierre and Mike Rounds. I think this is his attempt to inoculate the racketeering that’s run rampant under his nose by manipulating the anti-Obama sentiments in the state against the feds. It’s probably the only weapon he has left since the truth exposes very deep and widespread corruption reaching into the Governor’s Office, the Board of Regents and the Attorney General’s Office and its investigating arm.
Very well done Cory. You continue to be on top of this shameful SD Republican scandal.
Jackley is peddling as fast as he can. I sure hope he is unsuccessful and the DOJ thoroughly does its job. Or will SD be like Washington DC, which re-elected their criminal mayor, Marion Berry? We will soon find out – I hope.
If “poor me” Marty is expecting a pity party he needs to rethink that.
For those of you that remember Watergate, the Nixon White House made the same kind of attacks against the FBI and particularly against the media. Nixon didn’t seek justice, he sought dirt and vengeance.
I agree with 96 Tears and am curious about the timing of Marty’s recent outburst. Dammit, he won the recent state Supreme Court case, what more does he want?
As to the politics of the EB-5 scandal, in the 2014 election it appeared that the U.S. Attorney’s office and the FBI both provided plenty of cover for Mike Rounds by refusing to comment on the investigation.
Since we haven’t heard anything otherwise, it is a safe assumption that the FBI is still conducting an ongoing investigation.
Is Marty getting nervous? Is the DOJ’s non-response to Jackley because he too is part of their investigation? If not he should be.
Marty has had plenty of opportunity to reveal the total EB-5 investigation and has refused to do, including using the South Dakota Supreme to help cover the EB-5 scandal
Exactly, Roger.
To paraphrase a popular Bill Clinton quote, “It’s the cover up, stupid.”
Actually in this case, it’s both the cover up And the crimes.
That Sioux Falls paper did say that Anthony Phillips said that he would not comment on what he was investigating because it did not result in indictment of the individual he was after. That signals either (1) he was after Benda, who died before charges could be filed, or (2) he was after one of the other players on our roster against who managed to make sufficient inculpatory evidence disappear in Joop Bollen’s trunk.
Our friend, Jackley, reminds me a lot of our senior senator. Doesn’t really produce much, but never misses a photo op. He just seems to be occupying space until he can run for governor. Hope I’m wrong, but I doubt it.
If it was suicide who tipped off Benda to Marty’s alleged case against him?
Spot on larry, a very simple question that Jackley and the jackals do not want answered.
Jackley’s charge that attorney Phillips violated the South Dakota rules of ethics is answered in the rules themselves, which permit the direct communication with a person when “authorized to do so by law or a court order.” which “may also include investigative activities of lawyers representing governmental entities, directly or through investigative agents.”
Bob Newland brings up the pertinent question that if Jackley is so sensitive to the rules of ethics, why has no one in the state taken action on the malicious prosecution of Brandon Taliaferro. That is a function of the Bar Association, and no member of the Bar seems to have raised the issue. Such is the state of the “legal profession” in South Dakota.
Larry, if I had to speculate, I’d say it was whoever Benda met with for a shouting match in Aberdeen two weeks before his death.
Good read, David, of the notes on Rule 4.2! Your observation strengthens the case that Jackley is blowing smoke.
And why would Jackley blow smoke if his team is winning? Roger and 96 are onto something.
Going back to Benda: who, in his right mind would commit suicide by shooting himself in the abdomen?…a most painful, agonizing, and slow death…
That’s the conventional wisdom, Lars, but folks choosing to end their own lives have left conventional wisdom in the dust.
Mr. Benda’s family should have his body exhumed and an independent investigation made into his death. There are excellent forensic pathologists at the Univ of ND School of Medicine. Should be able to determine the distance from the gun to abdomen from the shot pattern, and maybe gunshot residue on the body, although its been a while now. The gun should also be checked for fingerprints. In fact, the FBI should do all this.
Paul, do you know under what circumstances the FBI could order such an exhumation?