Scoppe: Could Supreme Court footnote mean case closed for Harrell investigation?

Associate EditorJuly 13, 2014 

— WHAT GOES on inside of a State Grand Jury hearing room is by law secret. But what about the things that go on outside of it?

Wednesday’s unanimous Supreme Court order allowing a Grand Jury investigation of House Speaker Bobby Harrell to proceed contains language that threatens to draw a veil of secrecy over a matter far outside the Grand Jury’s reach: one of the most important power struggles in modern South Carolina history. But I’m getting ahead of myself.

This spring, Mr. Harrell filed a secret brief asking a judge whose identity was secret to hold a secret hearing to remove the attorney general from the investigation, for reasons we might never have known about but for the fact that someone — and I presume it was someone in the attorney general’s office — leaked that information to a reporter.

Once that information was public, it caused an uproar, and Circuit Judge Casey Manning declared that the matter would be heard in public. His reasoning was that the sort of things the secrecy law protects — who the Grand Jury is questioning, what documents it’s seeking, what it’s learning — are in no way compromised by a debate over whether the attorney general has a vendetta against the speaker.

As a result of Judge Manning’s decision — consistent with the mandate in our state constitution that the courts operate in public, and with our Supreme Court’s strong and steady defense of that constitutional mandate — we got to hear just how specious the speaker’s “evidence” of a political vendetta was. We got to find out that the judge was considering not whether the attorney general had a conflict of interest and would be replaced with another prosecutor but whether any investigation could even continue. And we got to attend the hearing into that question, where Judge Manning acknowledged that he had empaneled the Grand Jury whose legitimacy he was now questioning.

When Judge Manning ruled the attorney general couldn’t investigate whether legislators violated the state ethics law unless a legislative committee asked them to, we got to read his order. When the attorney general appealed to the Supreme Court, we got to read the briefs, and we got to watch the oral arguments on streaming video. And when the court reversed Judge Manning’s order on Wednesday, we got to read that.

And there at the bottom of page 12, right before that final sentence in which the justices remanded the case to Judge Manning to address the original issue — whether the attorney general should be replaced with another prosecutor — we read this extraordinary footnote: “Due to the secrecy afforded state grand jury proceedings, future arguments regarding jurisdiction, or any other ancillary matter, should be held in camera.”

Under other circumstances, it wouldn’t have been extraordinary. It is, as one prosecutor told me, the sort of language federal courts use routinely when discussing federal grand juries. Of course it’s dicey to talk publicly about whether the Grand Jury has jurisdiction, because that requires discussing precisely what it is that the Grand Jury is investigating. It’s also difficult to talk about such ancillary matters as subpoenas and disqualification of grand jurors, for similar reasons. Indeed, those are things that not only the public but the target of the investigation shouldn’t know about.

What makes the footnote jump out is that it is so … out of context. One is tempted to say gratuitous. But that implies bad faith, which seems itself to require a leap of bad faith. Let’s just call it curious. Potentially misread. Dangerously so.

Curious because there has been no violation of the State Grand Jury’s secrecy. Indeed, it was Attorney General Alan Wilson’s refusal to talk about what the Grand Jury was investigating that the judge used as his jumping-off point for shutting down the investigation.

Mr. Harrell, echoed by Chief Justice Jean Toal, has suggested that the secrecy was violated, when the attorney general sent out a news release announcing he was referring the matter to the Grand Jury. But he had done the same thing with another high-profile case, as had all of his predecessors since the investigative entity was created a quarter century ago.

We think we have an idea what the Grand Jury is investigating because S.C. Policy Council President Ashley Landess has been telling anyone who would listen, for going on two years now, about the concerns about Mr. Harrell that she took to Mr. Wilson, which led Mr. Wilson to ask SLED to investigate. But we don’t even know what is contained in the SLED report that was the basis for empaneling the Grand Jury.

The footnote is potentially misread because it’s so out of context, and because of that word “ancillary,” which is just vague enough to cover a world of sins. It seems inconceivable that the justices could have intended to shut the public out of what unquestionably is the public’s business: the extraordinary effort by one of the most powerful people in our state, if not the most powerful, to select his own prosecutor. And our judiciary’s response to that effort.

It seems even more inconceivable that the justices would do such an extraordinary thing so indirectly — in a footnote so easily misinterpreted — rather than being straightforward and unambiguous about their intention.

Whatever their intention, there is great danger here, should this footnote, issued by a court whose chief justice has made no secret of her pique over the publicity surrounding this matter, be misread to close the courtroom to the public.

I’d like to imagine that the Supreme Court would have overturned Judge Manning’s order even if all of what has happened to date had occurred in secret. But there’s an important reason that our constitution requires that our courts be open: We aren’t supposed to have to imagine that our courts are upholding the rule of law. We’re supposed to be able to watch them do that.

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

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