Sanford prosecution rests with McMaster

S.C. attorney general faces potential conflicts

The Greenville NewsNovember 24, 2009 

The question of criminal prosecution of Gov. Mark Sanford on 37 charges of violating state ethics law now rests in the hands of state Attorney General Henry McMaster, who is running for Sanford's job.

That could pose a conflict, legal experts say, though state law allows McMaster to remove himself and appoint a special prosecutor.

McMaster so far has declined to do so and gave no hint Monday that he might take the ethics charges to court, saying he would "conduct a thorough review" of the state Ethics Commission's report to determine whether the facts support prosecution.

"It's beginning to appear that politics is trumping prosecution," said Dick Harpootlian, former chairman of the state Democratic Party and a former 5th Circuit solicitor who won the ethics conviction of ex-USC president Jim Holderman for using his office for personal gain.

Harpootlian said McMaster likely faces conflict since Sanford's removal would elevate a rival GOP candidate for governor, Lt. Gov. Andre Bauer. Harpootlian said McMaster should appoint a solicitor or two to mount a criminal investigation, making use of the state grand jury and putting a swift end to the saga.

"This is going to go on for months, whereas the attorney general or his designee could bring this to a close very quickly."

The attorney general has the constitutional authority to appoint someone else - a solicitor, retired judge or elder statesman - to oversee investigations, the Greenville News reported earlier this year.

However, McMaster said then he would not use that option because he has no problem setting aside his own race for governor.

McMaster's spokesman, Mark Plowden, reiterated that stance Monday, saying taxpayers twice elected McMaster to be attorney general and "he will not shirk that responsibility."

Ken Gaines, a criminal litigation professor at the USC School of Law, said it's a no-brainer for McMaster to appoint someone else to handle the case, adding he might be wise to go beyond circuit solicitors since they answer to his office. "His office doesn't need to be involved in it," Gaines said.

The ethics report issued Monday said Sanford had used his "office for personal financial gain" by flying business-class or first-class, using state aircraft for personal and political purposes, and reimbursing himself thousands of dollars from his campaign for expenses not related to campaigning or his job as governor.

Sanford attorney Butch Bowers has characterized the ethics violations as minor and technical, saying none rises to the level of criminal conduct.

Harpootlian said, "I saw people all the time when I was prosecutor that came in and said they were great stewards of money except for this one case where they put some in their pocket."

The charges "are not minor because they show a pattern of complete disregard for the ethics law of the state," he said, noting one job of the state grand jury, which McMaster oversees, is to handle public corruption cases.

Gaines said the amount of money involved is fairly minor but "37 counts is a lot" and would likely be prosecuted under normal circumstances.

"It sounds like a repetitious pattern," he said. "Doing it over and over again."

In a typical case, Gaines said the defendant would likely agree to plead guilty to a misdemeanor on one or two counts, while the others would be dropped.

"You've got politics mixed up in this," he said. "It's a whole different animal."

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