Scoppe: Here’s the real danger in the Harrell ruling

Associate EditorMay 7, 2014 

— WE WANT our judges to be careful, to consider all the sides of all the issues before them. And although this ought to be our goal in all cases, it’s particularly important in such a potentially explosive case as the State Grand Jury investigation into corruption allegations against House Speaker Bobby Harrell.

Mr. Harrell has not even been charged with a crime, much less convicted, and if the investigation is built atop a fundamental violation of the law or the constitution, it’s best to find that out sooner rather than later. I get that.

And so I respect the idea enunciated Friday by Circuit Judge Casey Manning that, before this case proceeds any further, he wants a thorough examination of subject-matter jurisdiction. That is, he wants to make sure that the State Grand Jury and Attorney General Alan Wilson actually have jurisdiction to investigate this case without the House Ethics Committee asking them to.

But honestly, the idea that they don’t … . Well, it remains too bizarre to even comprehend.

The idea that the attorney general can’t launch a corruption investigation of a legislator without the blessing of that legislator’s colleagues is not giving the benefit of the doubt to the legislator. It’s giving away the farm. It’s emasculating the attorney general, and with him the people of South Carolina.

You want to know how out-there an idea it is that the state constitution prohibits the attorney general from investigating legislators without other legislators’ blessing? It’s so out there that even Mr. Harrell’s attorneys didn’t think of raising it.

That’s right. Mr. Harrell has some awfully audacious attorneys, attorneys who marched into court with straight faces asking a judge to leap over the separation-of-powers divide and invade the prerogatives of the executive branch by deciding which prosecutor can prosecute a case. But even they didn’t dream up this crazy theory. They quickly embraced it, of course; they’d be crazy not to. But the idea was not, as so many people had assumed, the brainchild of Bart Daniel and Gedney Howe.

It was, as Judge Manning acknowledged in court on Friday, Judge Manning’s idea.

We never imagined

How preposterous is the idea? Listen to former Attorneys General Henry McMaster, Charlie Condon and Travis Medlock, who served as South Carolina’s chief prosecutors for the past 30 years, showed up in the courtroom to make a point and issued this statement:

“Over the past thirty years, not one of us ever imagined the Attorney General needed authorization from a legislative committee or political body in order to investigate or prosecute alleged criminal behavior by an elected official. Such a restriction would undercut the core Constitutional authority of the Attorney General. And even more importantly, it would violate the fundamental basis of our system of government that all people should be treated equally under the law.”

Not one of us ever imagined such a thing.

This is not a close call.

This is not in any way related to the Rainey v. Haley decision that Judge Manning wrote last year, in which he and later the Supreme Court correctly concluded that a private citizen doesn’t have the authority under state law to essentially turn himself into a prosecutor when the House Ethics Committee doesn’t rule his way. Unsaid, but so obvious up until this moment that no one would have thought to say it, was that John Rainey was free to take his complaint about Gov. Nikki Haley to the attorney general and ask him to prosecute — and that the attorney general could have prosecuted, had he so chosen.

The state constitution says the attorney general “shall be the chief prosecuting officer of the State with authority to supervise the prosecution of all criminal cases in courts of record.” That, you may recall, is the language Mr. Harrell’s friends tried last month to strip from our constitution.

Clearly, those House members aren’t judges, but I can’t help wondering why they would feel the need to embark upon the arduous effort of removing the attorney general’s power from the constitution if there were even a remotely respectable theory out there that held that the Legislature can put statutory limits on the attorney general’s power to prosecute.

The state constitution also says that nothing else contained in the constitution can be interpreted to limit the authority the Legislature sets out for the State Grand Jury. That authority specifically includes the unlimited authority of the attorney general to use the grand jury to investigate public corruption.

‘The proper process’?

Mr. Daniel, who as U.S. attorney oversaw the Operation Lost Trust investigation that begat the state Ethics Act he is relying on for refuge for his client, said in court on Friday that Mr. Harrell was not “asking for immunity from any prosecution” but merely that “the proper process be followed.”

That, in his telling, would be the process by which citizens file complaints with the House Ethics Committee, made up entirely of House members and staffed by employees who work at the pleasure of the speaker.

So let’s consider what happens if the legislator’s colleagues take a there-but-for-the-grace-of-God-go-I approach to their jobs. Or if they’re terrified of losing their committee assignments, which are given and taken away by the speaker. Or if the speaker’s staff provides less-than-sound legal advice. What, in short, if the committee decides, based on something other than the facts and the law, not to refer the case to the attorney general? Well, under this theory, the case is closed. The attorney general is powerless to investigate. And that’s not immunity?

Actually, Mr. Daniel might be right in suggesting that sending this particular case to the House Ethics Committee would not result in immunity. The committee might have quashed the case if it had gotten it two years ago, before SLED spent a year investigating it, before the attorney general declared it a criminal corruption matter, before he said the SLED investigation uncovered new facts that he was not allowed to discuss but was compelled to investigate further.

But with all that in the public domain, it’s hard to imagine that members of the House Ethics Committee would be so brazen, or timid, as to refuse to send that case right back to the attorney general.

And that brings us to the primary danger in Judge Manning’s courtroom. The primary danger is not that the Harrell investigation could be quashed. The primary danger is that a spectacularly awful precedent would be set — one that says the accused gets to have his friends and subordinates decide the powers of the attorney general. One that obliterates what Messrs. McMaster, Condon and Medlock referred to as “the time-tested authority of the Attorney General to prosecute crime and enforce the laws of South Carolina equally, with no privileges or special terms or conditions for any citizen, including elected officials.”

As significant as a criminal indictment against a speaker of the House would be, it would be trifling alongside such a precedent.

Ms. Scoppe can be reached at cscoppe@thestate.com or at (803) 771-8571. Follow her on Twitter @CindiScoppe.

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