Former state Rep. Ed Henry’s attorney won’t get to question the state’s former top prosecutor this week about what happened in a Lee County grand jury room in 2014.
The Alabama Attorney General’s Office filed a motion to block the deposition of Matt Hart, which Henry’s lawyer, William White, had requested happen Friday.
U.S. Magistrate Judge Stephen Doyle said Henry’s attorney has until Aug. 16 to show cause why the motion should not be granted.
The filings are the latest move in the September 2017 lawsuit Henry, of Hartselle, filed against Attorney General Steve Marshall alleging that the state’s grand jury secrecy laws are used to intimidate grand jury witnesses and violate the First Amendment.
Henry was a lawmaker in 2017 when he filed the lawsuit. Henry alleges the state is preventing him from talking about not only what happened when he testified in 2014 before the grand jury investigating then-Speaker of the House Mike Hubbard, but what he knew prior to his testimony.
White did not return calls for comment Tuesday. Marshall’s office has declined comment on the lawsuit or the allegations in it.
White had also sought to depose Van Davis, the former St. Clair County district attorney who was appointed acting attorney general over the Hubbard investigation in early 2013 when then-Attorney General Luther Strange recused himself from the matter.
Several court documents were also sealed late last week.
Hart, who was removed as a defendant in the lawsuit, last week referred questions to Marshall’s office. Hart left the Attorney General’s Office suddenly in late 2018 and now works for a private firm.
Marshall’s attorneys have argued that Henry is free to talk about anything he knew prior to his grand jury testimony, but not what he learned or saw during his testimony.
“If Henry simply wants to discuss the facts that he knew before he testified, the challenged statutes do not prevent him from doing so, and there is no violation of his First Amendment rights,” the defense said in an unsuccessful 2017 motion to dismiss the lawsuit. “However, if he wants to discuss things he learned by being a grand jury witness — specific questions asked, conduct of the proceedings, etc. — the statutes prohibit such disclosures to protect state interests ….”
White has said state law should mirror federal grand jury secrecy law, where there is no obligation for secrecy among witnesses.
Hart led the special prosecutions division in the Alabama Attorney General's Office under then-Attorney General Luther Strange and remained after Marshall took over in 2017.
“We want to talk about what happened in the grand jury room and feel like they’re matters of public importance,” White said last week.
Violation of state grand jury secrecy law is a felony punishable by one to three years in prison and a fine of up to $5,000.
Henry for several years has asked Marshall’s office to make his grand jury testimony public.
Hubbard in 2016 was convicted of 11 felony ethics violations. He is still free while he appeals the convictions, which in June his attorneys asked the Alabama Supreme Court to overturn.
Unrelated to his current lawsuit, Henry this year pleaded guilty to a felony in connection to a kickback scheme involving his medical business. He’s serving two years’ probation.