Questions Surround Scope and Legal Authority of Tennessee Attorney General Investigation of State Legislator

Associated Press

NASHVILLE, Tennessee–The scope and legal authority of an ongoing investigation by Tennessee Attorney General Herbert Slatery into the conduct of State Rep. Jeremy Durham (R-Franklin) is being questioned by a number of Tennessee political insiders, attorneys, and individuals interviewed by the investigators who have spoken with Breitbart News.

Durham, who resigned as the Majority Whip of the Tennessee House of Representatives on January 24, is perhaps best known for sponsoring “The Stop Obamacare Act,” which became law in 2014.

At issue is whether the investigation is a political persecution designed to end the career of a brash, ambitious and effective young conservative legislator, or a legitimate exercise of the powers of the Speaker of the House, Beth Harwell (R-Nashville), and Attorney General Slatery.

Also at issue is whether the investigation is a fishing expedition that has expanded its scope to discover information about the private lives of other state legislators.

On Thursday, January 28, Speaker Harwell issued a statement that “today, I have asked the Attorney General to commence an independent investigation into the facts surrounding Representative Jeremy Durham’s ongoing situation.”

The Tennessean noted that its own reporting from earlier in the week had prompted Harwell’s actions:

A Tennessean investigation [first published on January 24] found three women who said Durham sent them inappropriate text messages. Two women provided texts to The Tennessean they received from Durham’s phone in which he asks them for pictures. Both text messages were sent after midnight.

Sources tell Breitbart News the investigation is being led by Associate Attorney General Bill Young, Assistant Attorney General Scott Crawford-Sutherland, Assistant Attorney General Linda D. Kirklen, and former FBI agent Walt Valentine, a private investigator in his seventies not employed by the state of Tennessee who has apparently been hired on a contract basis by Attorney General Slatery.

In 2005 and 2006 Crawford-Sutherland served as the lead prosecuting assistant attorney general in Kentucky, working under then-Attorney General Greg Stumbo, a Democrat who now serves as the Speaker of the Kentucky House of Representatives, in the probe of the hiring practices of Gov. Ernie Fletcher, a Republican.

Nine members of Fletcher’s administration were subsequently convicted of crimes which Fletcher described as comparable to “minor violations of fishing laws” when he pardoned all of those convicted. Fletcher also said that Stumbo “has been carrying out a political vendetta.”

Fletcher was resoundingly defeated for re-election by Democrat Steve Beshear in 2007, 59 percent to 41 percent.

When Crawford-Sutherland resigned as an assistant attorney general in Kentucky in 2011 to set up a legal practice in Nashville, the Nashville Business Journal described him as “a prosecutor who helped bring down the political career of Kentucky Gov. Ernie Fletcher.”

On February 4, one week after Tennessee Attorney General Slatery began the investigation of Durham’s conduct, Speaker Harwell, after apparently coming to think that she, acting on her own, did not have the legal authority to request the Attorney General to initiate such an investigation, “created an [Ad Hoc select] committee that will now lead an investigation into Rep. Jeremy Durham.”

“The committee is to investigate whether the public allegations concerning Representative Durham constitute disorderly behavior and whether such behavior or other circumstances justify expulsion of Representative Durham from the General Assembly,” Harwell said in a letter dated February 4 to Clerk of the House Joe McCord.

The Ad Hoc Article 2 Section 12 Select Committee formed that day consists of four members: State Rep. Steve McDaniel (R-Parkers Crossroads), who also serves as chairman of the House Ethics Committee, State Rep. Andrew Farmer (R-Sevierville), State Rep. Billy Spivey (R-Lewisburg), and State Rep. Raumesh Akbari (D-Memphis).

Doug Himes, who has served as counsel for the House Ethics Committee since 2003, was also named to serve as counsel to the new Ad Hoc Committee.

In December, Himes told WIBR of “a 2010 change to ethics practices that prohibits lawmakers from bringing complaints [to the ethics committee] based solely on media reports.”

“‘When I have had to investigate these for the committee, it’s hard to get y’all [in the media] to give us your sources,’ Himes said, laughing,” WBIR reported.

Both House Ethics Committee counsel Himes and Speaker Harwell, however, treated then-State Rep. Kent Williams differently in 2009, when a sexual harassment complaint against him was filed by another member with the House Ethics Committee, than they are treating State Rep. Durham in 2016, against whom no ethics complaints or criminal charges have been filed, though there are media reports that three anonymous women are alleging improper conduct and sexual harassment.

On February 8, Attorney General Slatery responded to the revised authorization for the investigation of Durham offered by Harwell, saying in a statement:

We recognize the importance of this matter to the Ad Hoc Select Committee and to the full House. Everyone has one goal – to ensure a thorough and fair investigation while respecting the process and those involved.

The legal authority for this investigation, however, is questionable, at best.

Article 2, Section 12, of the Tennessee State Constitution states that “each house may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member, but not a second time for the same offence, and shall have all other powers necessary for a branch of the Legislature of a free state.”

While the House can determine its own rules, Article 2 Section 2 of the Tennessee Constitution also provides for a clear separation of powers between the judicial, executive, and legislative branches. In an odd quirk of the Tennessee Constitution, the Attorney General is part of the judicial branch in Tennessee, and is appointed by the State Supreme Court, not the Governor or the voters in a statewide election.

Title 8, Chapter 6, Section 109 (b)( 5) of the Tennessee Code Annotated authorizes the Attorney General to provide “members of the general assembly….legal advice required in the discharge of their official duties,” while 109 (b) (6) authorizes the Attorney General “to give… members of the general assembly … when called upon, written legal opinions on all matters submitted by them in the discharge of their official duties.” (emphasis added).

What this means is that it is a very much a gray area when it comes to determining if the House as a whole (and in this case, it’s not the House as a whole acting but merely the Speaker and the four members who have accepted an appointment to the Ad Hoc Committee) has the statutory authority to request the Attorney General to conduct an investigation of fact (as opposed to “legal advice” and “written legal opinions”) to recommend whether a member should be expelled.

There is also a question whether the Attorney General has the statutory authority to agree to such a request. There appears to be no supporting legal precedent for such action by the Attorney General.

“There is no express provision in the Tennessee Constitution or statutes that directs the Attorney General to conduct non-criminal investigations of alleged conduct of a member of the legislature,” an attorney familiar with the Tennessee Constitution and statutes tells Breitbart News, adding:

In reviewing the statutes, I am unaware of any publicly available precedent for the Attorney General to conduct an investigation into the non-criminal conduct of a legislator for the purpose of expelling that legislator from the Tennessee General Assembly and the precedent that does exist is typically limited to giving advisory opinions as to what the law allows or disallows in general but not as to the conduct of specific individuals.

The Ad Hoc Committee has not explained why it requested the Attorney General’s office, rather than the Tennessee Bureau of Investigation, to conduct the investigation of fact.

Multiple sources tell Breitbart News they believe the Attorney General’s office and Speaker Harwell are communicating regularly about the progress of the investigation.

“I have a sense that everything said in these interviews conducted by the Attorney General’s office as part of this investigation is quickly shared with the Speaker’s office,” one source tells Breitbart News.

Several of those interviewed in the probe tell Breitbart News that investigators have merely asked cursory questions about Durham, then have begun to probe about the conduct of other legislators and women who have had any professional or personal contact with either Durham or other legislators. In addition, investigators have demanded, without warrants, that many of those questioned hand over their personal cell phones so that all of the data in the phone can be downloaded for review by the investigators. While some of those who have been interviewed by the investigation have complied with this request, others have refused to do so.

Breitbart News has spoken with three of the dozens of individuals who have been interviewed by investigators from the Attorney General ‘s office, and they tell a consistent story of attempts at intimidation and an investigation fishing for evidence.

“I was interviewed by two people, a woman named Linda and a guy named Scott. They didn’t leave business cards. They asked more questions about others than they did Jeremy Durham,” one person who was interviewed by investigators from the Attorney General’s office tells Breitbart News.

“They briefly asked about him, but mainly they asked me about the women he allegedly harassed and other legislators. They were hunting down gossip on them,” the person says.

“It was good cop, bad cop. Linda was the good cop. Scott, the guy, was really aggressive. It got much more intense.”

“The takeaway for me was, my God, I’m only here to talk about other people,” the first individual adds.

“They were on a fishing expedition. They didn’t have anything,” is how a second person who was interviewed by investigators from the Attorney General’s office describes the experience to Breitbart News.

“It has the appearance they were expanding the scope of the inquiry beyond Jeremy Durham to other state legislators. That’s a frightening thought. Somebody’s gathering information for future use,” the second person tells Breitbart News.

“It was more intimidating than I ever thought it would be. They made it seem as though I was on trial for knowing these rumors,” the first person who spoke with Breitbart News and was interviewed by the investigators says.

“You can imagine if you were a 24-year-old woman being interviewed by these staffers from the Attorney General’s office, not really familiar with the State Legislature, you can imagine how that would feel,” the first person continues.

“It wasn’t fair of these staffers in the Attorney General’s office to question these women who some people think are too friendly… the questions implied they were sleeping with someone, and they were withholding information from the investigators,” the first person adds.

A third person tells Breitbart News their interview was conducted by two staff attorneys from the Attorney General’s office, a woman of about 60, and a middle aged man with dark hair.

“They asked me if Jeremy Durham had ever made sexual advances towards me. I laughed and told them no. Then they asked me if I considered Jeremy my friend, and I said, yes, I do consider him a friend,” the third person says.

“There were two staff attorneys from the Attorney General’s Office and a special investigator when I was interviewed,” the second person who was interviewed by investigators tells Breitbart News.

“The special investigator took the lead asking the questions. He was older. He had white hair and was very neatly put together, like an FBI agent. He wanted to know were Jeremy Durham and I friends, did we hang around in the evening, did we socialize together. What did I know first hand. What did I know rumor-wise,” the second person says.

“Then they wanted to know the names of the young women, several different women, who had told me Jeremy Durham had not harassed them. They wanted their names. But the women wanted to be anonymous.”

“The investigators really pushed me. ‘We can subpoena you,’ they said. ‘You’ll have to, because I’m not going to tell you,’ I told them,” the second person adds.

“They asked me questions in a way to see if I was telling them the truth. They would go back to ask a question a different way throughout the 45 minute interview,” the second person notes.

One person who was among the dozens interviewed by the Attorney General’s office tells Breitbart News that Associate Attorney General Bill Young made a personal visit to their office to schedule that interview.

“Just what is it you’re looking for? What do you think Jeremy Durham has done?” that person asked Young.

“That’s what we’re trying to find out,” Young replied.

“In my mind, that just fell in with the witch hunt that I feel like they’re on,” the person tells Breitbart News of Young’s response.

Another source tells Breitbart News that a young woman they know was interviewed by the investigators from the Attorney General’s office and “they wanted to know if she had been harassed.”

“She told them no. They asked if she would tell them if she had been harassed. She said she would tell the them if she had been harassed by Jeremy Durham, but the fact was, she had not been harassed by him,” the source says.

“They wanted to know if a particular state legislator or anyone in that state legislator’s office was withholding information from the investigation. It was very intense questioning. She was not a fan of Jeremy Durham she told them, but she had not been sexually harassed by him,” the source tells Breitbart News.

The investigators for the Attorney General have used intimidation tactics of questionable legality outside the confines of the formal interviews as well.

At 8 am on Saturday morning, February 13, a man, who subsequently identified himself only as “an agent of the Tennessee Attorney General,” forced his way, without being given permission to enter, into the private residence of State Rep. Durham and demanded Durham read a document sent to him by Attorney General Slatery in his presence.

“I opened the door and a man shouldered his way in, he stepped through the door, I wasn’t forcefully holding it, I was kind of holding it half open half closed,” Durham says.

“The man was in his seventies. He had white hair, was about 6 foot, 6 foot 1, kind of slender to average build,” Durham tells Breitbart News, adding:

He did not identify himself by name, but said he was an agent of the Attorney General.

“This is my house. You don’t have my permission to enter,” I told him.

“It’s cold outside,” he responded.

“The 4th Amendment doesn’t care if it’s cold outside. I need you to wait outside,” I told him.

“He was absolutely trying to intimidate me,” Durham says of the man who trespassed into his house that day.

Ultimately, the man moved outside the house, and Durham joined him there.

“He wanted my iPad. I gave it to him because it was state issued,” Durham tells Breitbart News.

Less than two weeks later, the same man confronted Durham again, this time on the floor of the Tennessee House of Representatives on February 22 as Durham sat at his desk waiting for the Speaker to gavel the House back in session for a joint session of the TGA with the Senate for the purpose of confirming State Supreme Court Justice Roger Page.

“We had been gaveled into session earlier in the day, but we were in recess prior to the joint session coming to order,” Durham tells Breitbart.

“I was sitting at my desk when a man approached me. It took me a while to recognize that it was the same man who had confronted me and entered my residence without permission on February 13.”

“He held a document towards me for a while, and I didn’t really understand what was occurring. They were probably hoping the media would take a picture of it. My desk was very close to where the media was sitting, ” Durham says.

“After he gave me the letter, one of the sergeant at arms saw what was going. He came over and apologized to me that I was given the sheet of paper while I was sitting at my desk.”

“Two of them told me they did not know who he was, and that he had not identified himself to them,” Durham adds.

“I know the sergeants at arms were not happy about it. They wouldn’t have allowed him on the floor had he followed protocol and identified himself to them prior to entering the chamber.”

“He’s just an angry old man. He was very sure of himself,” Durham says of the investigator working for the Attorney General who trespassed on his property on February 13 then served him papers on the House floor on February 22.

The man Durham says confronted him twice, and who several interviewees say questioned them during the investigation, fits the description of former FBI agent Walter Valentine.

It is unclear why Attorney General Slatery chose to hire Valentine, an outside investigator not employed by the state of Tennessee, at additional expense to the taxpayer when investigators from the Tennessee Bureau of Investigation are available to provide such services to the Attorney General.

Valentine’s 30 years of service to the FBI from 1965 to 1995 is not in question. However, his track record as an investigator does raise a few questions.

In 2007, for instance, he gave then-Knox County Mayor Mike Ragsdale, a clean bill of health when he conducted an investigation into Ragsdale’s financial practices in that office. Ragsdale left office in 2010 under a cloud amidst allegations of financial improprieties.

The Attorney General issued an interim report to the Ad Hoc Committee and the public on April 6, which recommended the removal of Durham’s office from the Legislative Plaza, and that he “should have no contact with legislative staff or interns, other than his assigned legislative assistant, that is not directly related to official legislative business.”

The Ad Hoc Committee has followed those recommendations.

“Information obtained during the investigation reveals a pattern of conduct by Representative Durham directed toward a number of women who either currently work for, or formerly worked with, the Legislature,” the report says.

“Some of the women interviewed,” the report adds,”stated Representative Durham’s behavior created an environment which has made them uncomfortable in the work place.”

The complete interim report can be read here.

“We were surprised today that an interim report was released without our input or an opportunity to know what investigation by the attorney general had been conducted. The process has not been fair and our side has not been heard. We have not been consulted about process,” Durham’s attorney Bill Harbison told the Williamson Herald immediately after the report’s release to the media.

“We did not know the report would be made public. There has been no input from us,” Harbison added.

Multiple sources tell Breitbart News that the Attorney General plans to release the final report prepared for the Ad Hoc Committee to the public in mid-July, around the time early voting for primaries begins in the state.

It is unclear what binding legal impact the report’s recommendations will have, since the 109th session of the Tennessee General Assembly adjourned in late April. Unless a highly unusual special session is called, there will be no further meeting of the 109th session. The 110th session will convene in January 2017, and will be comprised of a new crop of state legislators elected in November of this year.

It is unclear if the Ad Hoc Committee from the 109th session, or the Attorney General’s report recommendations submitted to it, will have any legal significance for the 110th session.

The report, however, may serve a political purpose.

State Rep. Durham is running for re-election, and he is facing a serious primary challenge from retired Army Colonel Sam Whitson.

The primary election will be held on August 4. In Durham’s heavily Republican district, a victory in the primary is tantamount to a general election victory.

Should Durham be defeated in the August primary, several Tennessee political insiders tell Breitbart News they are concerned Speaker Harwell and Attorney General Slatery will be emboldened to use their newly asserted investigative powers to broaden their net and target other conservative elected officials on whom they’ve gathered information.

Durham, they say, was simply the first target — the most vulnerable elected conservative official in the state.

But Speaker Harwell faces a general election challenge in her own Nashville district. If she wins in November, she will have to persuade her colleagues in the Republican caucus of the 110th General Assembly she deserves another term as Speaker.

In light of her own recent conduct, political insiders tell Breitbart News, that may be a tall order.


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