KALISPELL — An investigative report into the high-profile 2009 boat crash involving former state Sen. Greg Barkus and U.S. Rep. Denny Rehberg was unsealed Wednesday, but the document reveals scant new details.
It seems unlikely that the file’s release, less than a week before the Nov. 6 election, will have much bearing on a tight U.S. Senate race between Rehberg, R-Mont., and Democratic incumbent Sen. Jon Tester.
Much of the information contained in the 155-page document already surfaced during the criminal proceedings against Barkus, who was legally drunk when he crashed into the rock-studded shoreline of Flathead Lake on the night of Aug. 27, 2009, injuring himself and four passengers, including Rehberg. The congressman suffered cracked ribs, a fractured eye socket and a broken ankle.
Barkus, now retired, pleaded no contest to a felony criminal endangerment charge, received a four-year deferred prison sentence and probation and was fined $29,000.
An edited version of the previously sealed report was released Wednesday evening after requests from Citizens for Responsibility and Ethics in Washington, a Washington, D.C.-based group that investigates congressional corruption, as well as several Montana news organizations.
District Judge John McKeon of Malta agreed to release the confidential report, citing the public’s right to know. He ordered some details withheld to protect individuals’ constitutional rights to privacy, including Barkus’ home address, his health and financial profile; personal information about the crash victims, witnesses and investigators; three victim impact statements; letters submitted in support of Barkus; and personal information about an outside consultant hired to reconstruct the crash.
The file contains investigative materials from multiple law enforcement agencies, including the Flathead County Sheriff’s Office, Montana Fish, Wildlife and Parks and the state Crime Lab. It also includes statements from witnesses to the crash and the boat’s passengers, toxicology reports, evidence inventory sheets and a crash analysis conducted by an out-of-state contractor.
The report corroborates elements of the felony offense to which Barkus pleaded no contest — that he was driving too fast (up to 45 mph) across darkened waters and that he had consumed enough scotch and red wine to register a blood alcohol content of 0.16 percent, which is twice the legal driving limit. The blood sample was drawn one hour and 45 minutes after the crash, which sent the vessel airborne. Some first responders were surprised there were no fatalities.
But the report sheds no new light on Rehberg’s role in the crash, and the congressman’s staffers say CREW’s request for access to the investigative materials was politically motivated. Rehberg did not intervene in the release of the records.
“Denny supports Judge McKeon’s decision to release the report to the public, despite the fact that the group requesting its release did so for purely political purposes and has strong ties to the Democrat Party,” Erik Iverson, Rehberg’s campaign manager, said in a prepared statement.
In its request for materials, attorneys for CREW said the files should be disclosed because they may contain information the public should know about the “honesty, integrity and judgment of its elected officials.”
In his response, McKeon agreed: “Neither this court nor Barkus can ignore the fact that Barkus and Rehberg were public officials at the time of this offense of criminal endangerment, this felony offense involved serious bodily injury and knowingly engaging in conduct that created substantial risk of serious bodily injury and that due to the contested U.S. Senate race, there remains considerable public interest regarding this offense.”
Tester’s campaign manager, Preston Elliott, said the report was “heavily redacted” and raises questions about the veracity of Rehberg’s statements, made to reporters in a conference call after the crash, that he saw “no signs of impairment” in Barkus.
“This report raises more questions about Congressman Rehberg’s gross failure of accountability and his dishonesty with Montanans about what truly happened that night,” Elliott said. “Congressman Rehberg wants us to believe there were ‘no signs of impairment,’ but these records indicate a much different story about a night of heavy drinking. More importantly, Congressman Rehberg made a decision to put his two young staffers on a boat with a driver who was obviously and severely drunk — a decision that changed lives forever. That kind of personal irresponsibility has no place in Congress.”
Also on board the boat were Barkus’ wife, Kathy, and two of Rehberg’s congressional staffers — Kristin Smith and Dustin Frost. The latter was in a coma for days after the crash and was listed in critical condition.
The investigative report contains information about all four passengers, who together attended an “end of the summer” party at Docks Restaurant in Lakeside prior to the crash.
Smith, in an interview with an investigator detailed in the file, stated that she recalled Barkus ordering a scotch at the restaurant and that “he was basically drinking, at least what I saw, red wine for the rest of the night.” A restaurant bill and testimony from the waitress who served Barkus and the others seated at table 23, including Rehberg, established that Barkus had two Dewars scotches with dinner. The wine was furnished by a private party, and there is no inventory of glasses consumed.
Rehberg said he ordered a beer at the bar upon arriving and, rather than interact with the Barkuses, with whom he arrived, began “working the crowd.”
Other signs of alcohol consumption were apparently evident to some, but not all, after the crash. According to a report by FWP Game Warden Nathan Reiner, first responders and rescue personnel reported that they could smell alcohol while attending to Barkus’ injuries. Several months later, in a memo to the Flathead County Attorney’s Office, Reiner said he had been informed that no fire or ambulance personnel would admit to smelling alcohol on Barkus.
When Reiner asked Bigfork Fire Chief Chuck Harris to explain the retracted statements, he said he could not, “except that he stated that it is possible that some did not want to get involved.”
One responder recalled smelling alcohol on Frost, according to the memo, but was not close enough to Barkus to detect an odor. Other witnesses, including a group camped near the scene of the crash, at Wayfarers State Park, reported smelling raw fuel and blood, but nothing else.
In a statement after the release of the investigative file, CREW said the report shows Rehberg lied when he said Barkus did not appear intoxicated.
“All of the evidence demonstrates Sen. Barkus had been drinking for some time before the accident — while in the company of Rep. Rehberg and the other boat passengers. So, when Rep. Rehberg told reporters Sen. Barkus was not intoxicated, it appears he lied,” according to CREW’s statement.
Anne Weismann, chief counsel for CREW, said the group targets members of Congress from both parties. Its latest annual report on the “most corrupt” members of Congress listed eight Republicans and four Democrats.
When asked why CREW didn’t ask for release of the report earlier, Weismann said the group wasn’t aware of Rehberg’s involvement in the case “until very recently.”