COLUMBIA, SC — South Carolina Attorney General Alan Wilson faces a win-win situation in sending allegations of ethics law violations against House Speaker Bobby Harrell to the State Grand Jury to investigate, according to the buzz around the State House.
No matter how the investigation ends – with an indictment or with the Charleston Republican being cleared – the decision will come from that body, not Wilson, lawmakers discussing the matter on the condition of anonymity note.
But other observers say the meaning of the investigation could be starker for Harrell, who has been head of the House since 2005. Three former S.C. attorneys general say a case is not referred to the State Grand Jury without the attorney general having evidence of potential criminal activity.
Checks and balances in place prevent the attorney general from simply deciding to pass off a politically volatile case to the State Grand Jury. Those checks and balance include the requirement that the attorney general, SLED chief and a Circuit Court judge all sign off saying a grand jury investigation is warranted, former Republican Attorney General Henry McMaster has said.
Another former S.C. attorney general says the certification process is designed to ensure allegations are not referred to the State Grand Jury unless the attorney general can identify, in some detail, what crimes may have occurred.
The document outlining those details is sealed from public view, meaning the public may never know what evidence or possible crimes led to a grand jury investigation if no indictment is returned.
The S.C. General Assembly created the State Grand Jury in 1989 to bolster the state’s ability to investigate some types of criminal activity, including public corruption.
The attorney general is legal counsel to the State Grand Jury, guiding its inquiry in what is a one-sided proceeding where the defendant does not get to present his or her side of the case. The Grand Jury evaluates the prosecution’s evidence to determine if an indictment is warranted.
The political nature of the Harrell investigation – pitting a seated constitutional officer against the most powerful legislator in the state – is driving speculation about what comes next.
The accusations against Harrell, published in the media, have been driven by watchdog groups crying for an investigation.
In a move that surprised Harrell and others, Wilson, a Lexington Republican, announced publicly he was referring the allegations against Harrell to the State Grand Jury on Jan. 13, the day before the General Assembly returned to Columbia for the legislative session.
State Rep. Kirkman Finlay, R-Richland, said the State House was abuzz with questions about the timing of Wilson’s announcement: “The biggest comment that I have heard is that the timing, the day before session started, was, at best, poor (and), at worst, political,” Finlay said.
Others of those interviewed for this story – about 20 legislators, three former attorneys general and other political observers – thought Harrell’s reaction of being caught off-guard and defensive was curious, too.
Harrell called reporters together at the State House, about an hour before the start of the legislative session, to charge the announcement by fellow Republican Wilson was motivated politically and timed to “inflict political harm” on him, an allegation the attorney general’s office rejects.
“Since its inception, politics has never played any role in the State Grand Jury process,” Wilson’s spokesman Mark Powell said Friday. “Moreover, state law prevents politics from ever becoming involved,” Powell said, referring to “safeguards” governing the State Grand Jury.
State House rumblings
The allegations against Harrell have been making headlines since late 2012, when his hometown newspaper, The (Charleston) Post and Courier , raised questions about whether Harrell broke the law by reimbursing himself about $300,000 in campaign money for flying his plane on what he said was state business.
Ashley Landess, president of the libertarian-leaning S.C. Policy Council, filed a complaint with Wilson’s office in February, alleging Harrell also may have broken state ethics laws by lobbying a state agency on behalf of one of his businesses, appointing his brother to a panel that screens judges, and failing to itemize reimbursements and document some campaign expenses.
Wilson asked SLED to investigate. In December, SLED returned a “voluminous” report to Wilson, who referred the matter to the State Grand Jury.
The buzz at the State House includes speculation about Wilson’s motivations for referring the allegations – and what that referral means for Harrell.
House members are talking. But most declined to go on the record.
In part that is because an investigation is not proof of guilt, representatives say. They also say the House has a lot of work to do this year. As speaker, Harrell has power to influence what bills make it out of committee.
Across the State House lobby, state senators did not want to weigh in publicly either. Most said they want to avoid the appearance of casting judgment as the investigation continues.
Generally, lawmakers say Wilson’s decision to send the allegations to the State Grand Jury allows him to avoid accusations of protecting or targeting Harrell. Now, the decision to indict Harrell – or clear him – is up to the grand jury, not Wilson.
But lawmakers and attorneys general interviewed for this story largely dismissed Harrell’s accusation the investigation is motivated politically. The steps required to refer a case to the State Grand Jury are designed to safeguard the process against political manipulation, they say.
‘Safeguards were set up’
To bring a matter before the State Grand Jury, the attorney general and SLED chief must “consider it necessary” because “normal investigative or prosecutorial procedures are not adequate” to complete an investigation, state law says.
The attorney general sends a written petition to a chief administrative judge of a Circuit Court to activate the jury. The petition, signed by both the attorney general and SLED chief, “must allege the type of offenses” the State Grand Jury will investigate.
That way, the judge can decide whether the allegations fall under the State Grand Jury’s jurisdiction, said former Republican S.C. Attorney General Charlie Condon, a Mount Pleasant attorney and a self-described friend of Wilson, who interned in Condon’s office.
Asked what level of detail those criminal allegations should have, Condon said, “the greater the specificity the better,” so that the “head of SLED and the circuit judge understand why you’re asking for it.”
“You wouldn’t want to ask the head of SLED to sign a petition and ask a circuit judge to grant a petition unless you felt that all of it would be warranted from the standpoint of enforcing criminal laws in South Carolina,” Condon added. “You don’t crank all that up without that being the goal.”
A case may need more investigation to answer remaining questions, but good prosecutors are expected only to advance to a grand jury legitimate cases that point to criminal activity, Condon said – cases that “have legs,” as former S.C. Attorney General Travis Medlock put it.
The grand jury has the power to subpoena documents and compel sworn testimony, under the guidance of the attorney general or his appointee, giving it a powerful investigative tool.
If the jury produces an indictment, the next step would be a trial, where the defendant can present his or her side of the case. At trial, the burden of proof is much higher than before a grand jury, said Condon.
Condon added the grand jury would not return an indictment on a case that “has all the earmarks of being totally political.”
“The safeguards were set up to move the (grand jury) legislation through a somewhat reluctant Legislature,” said Medlock, a Democrat who was in office at the time of the State Grand Jury’s creation. “The grand jury was a very new thing, and the General Assembly was being very cautious about investing this extraordinary power in (it).”
Few public corruption cases
Indictments are public. So, too, are “no bills,” cases where an attorney general asks a grand jury for an indictment, but it declines to approve one. (Officials could recall only one such case, in the ’90s.) But the rest of the State Grand Jury’s proceedings and records, including cases dropped because there is not enough evidence to warrant an indictment, are secret, said the jury’s clerk and Powell, Wilson’s spokesman.
That makes it difficult to know how many cases the body investigates each year.
But records show public officials are seldom the subject of State Grand Jury indictments for corruption.
The State Grand Jury has returned 172 indictments against more than 600 defendants since 2003. (Earlier records were unavailable for this story.)
Twenty-four of the 172 indictments were for public corruption, including the charges against then-Lt. Gov. Ken Ard, R-Florence, the only statewide official indicted by the State Grand Jury for public corruption since 2003.
In the other public corruption cases, the accused have been government employees accused of embezzling money, police charged with trafficking drugs, sheriffs accused of using inmates to work on their private property or judges charged with reducing penalties or giving favorable treatment in exchange for money, goods or sexual favors.
Investigations not always secret
Harrell has pointed to Wilson’s public announcement of the grand jury investigation as evidence of politics at play. Harrell spokesman Greg Foster said last week that grand jury proceedings are secret so they do not harm the reputation of someone who falsely is accused.
But other high-profile State Grand Jury cases also have started out publicly, including a securities fraud investigation against executives of HomeGold Financial and Carolina Investors that continued for years before resulting in indictments and convictions, including that of former Lt. Gov. Earle Morris in 2004.
In 2011, Wilson announced he had asked the State Grand Jury to investigate Ard, lieutenant governor at the time. In March 2012, Ard resigned and, on the same day, was indicted and entered a guilty plea to charges of violating state ethics law.
Announcing an investigation serves a purpose sometimes, Condon said. “It’s entirely appropriate for the attorney general to let the public know” about the State Grand Jury reviewing a case.
Without commenting on Harrell’s case specifically, Condon said, “It takes public support for our criminal justice system to work. The more information about what’s going on with the criminal justice system is not only positive, but it’s essential.”
Reach Self at (803)771-8658