Scoppe: Does the Legislature need its own prosecutor?

Associate EditorApril 27, 2014 

— LET’S ASSUME, for the sake of argument, that House members really were not trying to intimidate the attorney general into dropping his corruption investigation into House Speaker Bobby Harrell when they proposed to let a legislative appointee investigate the attorney general and to strip the attorney general of the power to investigate any cases they didn’t want him investigating.

Let’s assume that because it clears away the audacity of such efforts and allows us to focus on the deep and disturbing problems with the thing that House members tell us they were trying to do when they introduced H.5072 and took the extraordinary step of bypassing the committee process and placing it directly on the House calendar for debate.

They say they were trying to answer a question posed by the attorney for the State Ethics Commission when she wondered aloud who would have the authority to prosecute the attorney general if he violated the ethics law. And address the more mundane possibility that, say, an attorney general’s brother violated the law, creating a conflict of interest for the attorney general.

There is nothing unreasonable about allowing the appointment of a special prosecutor to investigate the attorney general, or about codifying a procedure for handling conflicts of interest involving the attorney general. Conflicts are handled informally now, with attorney generals asking solicitors to take over their cases if they think there is a problem.

Nor is it unreasonable that the question would come up in relation to problems with Attorney General Alan Wilson’s campaign reports; indeed, it’s healthy for the mind to wander into such what-ifs.

What is unreasonable is House members’ idea about how such problems should be addressed. What is unreasonable is the insidious implication around which their fix is built.

Let’s look first at the implication: that there is some moral or even legal equivalency between the campaign-finance activities of Mr. Wilson and of Mr. Harrell, who is the subject of a State Grand Jury investigation launched earlier this year at the instigation of Mr. Wilson and SLED Chief Mark Keel.

There is not. What has been suggested about Mr. Wilson’s campaign reports does not even begin to rise to the level of what is alleged in the Harrell case. The Harrell case is not, as many would have us believe, about whether the speaker provided enough detail on his campaign disclosure reports; the reporting law is ambiguous, and even if it were clear, failing to provide sufficient detail would not be a criminal matter.

The Harrell case is about whether trips Mr. Harrell took on his private plane and reimbursed himself for through his campaign account were legitimately related to his office — or whether they were personal trips. If they were personal trips, then he was converting campaign funds to personal use, which is a serious criminal violation. It’s the sort of thing that brings down the careers of powerful politicians the nation over, and lands them in prison.

What Mr. Wilson did was to leave the names of some donors off his campaign reports and accept some donations over the legal limit, in some cases because campaign staff miscalculated when one election cycle ended and the next started.

I am always troubled when candidates fail to report the names of all donors — which defeats the purpose of the campaign finance law — and the number of unreported donations in this case is disturbing. But unlike Mr. Harrell — who has refused even to update his reports with the details whose absence spurred questions — Mr. Wilson has been amending his reports to add the missing names and other details.

Yet as insidious as the implication is about why we need to amend our law, it’s less disturbing than the amendment, which gives the Legislature its own special prosecutor. Which empowers the Legislature to launch criminal probes of the attorney general and other statewide officials.

There might be some theoretical way in which this would make sense if the governor controlled the attorney general. She does not.

Unlike the president, who hires and fires the U.S. attorney general, our governor has no control over prosecutors. The attorney general is elected independently. (So are the 16 solicitors, although Mr. Wilson retains the constitutional authority to take cases away from them — a power that the companion to H.5072, H.5073, would take away.)

Even if the legislation were written so that it simply did what its supporters say they intended, we still would have a House full of legislators in need of a remedial class in Government in the United States.

That class starts with the separation of powers, which in our nation and in every single state holds that we have a legislature to write laws, an executive to enforce laws and a judiciary to judge conflicts, including seeing that neither executive nor legislature oversteps the other’s authority.

Last I checked, bringing criminal charges fell into the “enforcement” category. That makes it an executive function.

The idea that the Legislature could launch criminal investigations would be a non-starter anywhere in this nation — except South Carolina. It should be a non-starter here.

Ms. Scoppe can be reached at cscoppe@thestate.com. Follow her on Twitter @CindiScoppe.

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