Saying “this decision is too important to shoot from the hip,” Circuit Court Judge Casey Manning said Friday he will take a week or more to rule whether the state attorney general’s office can investigate potentially criminal ethics violations against S.C. House Speaker Bobby Harrell without first getting an OK from the House Ethics Committee.
Speaking from the bench at the end of a two-hour historic hearing, Manning told Attorney General Alan Wilson and Harrell – both in the courtroom – that whatever decision he makes, he expects the losing side to appeal to the S.C. Supreme Court.
“I haven’t made a decision. I’m here to listen. I don’t know what I’m going to do,” Manning said at the end of the hearing, held at the Richland County courthouse.
At issue is a simple question: Does the state’s top prosecutor, Wilson, have the right to initiate a State Grand Jury investigation of S.C. House members for possible criminal violations of state ethics laws?
Or must the attorney general first refer such cases to the 10-member House Ethics Committee, where friends and colleagues of the lawmaker under investigation will make the decision about whether to let the attorney general begin a State Grand Jury investigation into potential criminal violations in an ethics case?
Specifically, Harrell has been accused of converting large sums of campaign funds to his personal use.
To Wilson, forcing the attorney general to delay a State Grand Jury investigation into potentially criminal ethics violations or public corruption by S.C. House members until the 10-member S.C. House Ethics Committee turns the case over to his office would be like granting “legislative immunity” to House members.
“If there’s a referral required by the House or Senate ethics committees, legislators may have criminal immunity from prosecution from crimes outside the Ethics Act,” Wilson – who argued the case for his office – told Manning.
“We’re creating a situation where the House Ethics Committee is the supervisor of the criminal prosecution of its own members,” Wilson said.
To Harrell attorney Bart Daniel of Charleston, that argument was beside the point.
“No one is asking for immunity from any prosecution,” Daniel told Manning. “Only that the proper process be followed – especially the attorney general has to play by rules and follow the law.”
Daniel said state law says ethics complaints against lawmakers should first go to the House Ethics Committee and then, if potential criminal wrongdoing is found, the committee forwards it to the attorney general.
Wilson’s launching a State Grand Jury investigation without the matter being referred to him by the Ethics Committee is “premature,” Daniel said.
Daniel stressed to Manning that the original February 2013 complaint letter in the case, from S.C. Policy Council chief Ashley Landess, had a label saying it was an “ethics complaint.”
Wilson, while admitting that was true, stressed Landess also clearly stated in the letter she believed there were potential criminal violations involved in Harrell’s activities.
Landess had considered giving her allegations to the House Ethics Committee but gave them to Wilson because of the criminal nature of her allegations, Wilson told Manning.
Wilson then turned the letter over to the State Law Enforcement Division, which began what turned out to be a 10-month investigation, Wilson said.
“We thought (the SLED investigation) would be a three-, four-week process,” Wilson said. “Ten months later, we got a voluminous report back that provided additional information not yet known to this court or anyone else. That information is what we based our determination (to launch a State Grand Jury investigation) on.”
Manning said, “We don’t want to go too far. I know what you are saying.”
Wilson also reminded Manning that Mark Keel, the chief of SLED, had joined him in requesting the State Grand Jury to investigate Harrell allegations that SLED had turned up – not the allegations in Landess’ letter.
As Daniel, Wilson and attorney general’s office solicitor general Bob Cook argued their case, South Carolina’s three living former state attorney generals – Travis Medlock (1983-95), Charlie Condon (1995-2003) and Henry McMaster (2003-11) – sat in the courtroom’s first row. Each had a significant role in developing or using the powers of the State Grand Jury, which is empowered to investigate major complex cases of public corruption, among other things.
These three former attorney generals are in court because they support his side in the case, Wilson told Manning.
After court, Harrell spoke briefly with reporters, telling them Wilson is motivated by politics.
“What we just saw was a campaign speech by the attorney general in there,” Harrell said. “The judge kept trying to bring him back onto the subject. All we wanted from Day One is to have the facts of this case come out, and have it dealt with the way it is supposed to be dealt with.”
Meanwhile, the three former attorneys general released a joint statement saying in part, “Not one of us ever imagined the attorney general needed authorization from a legislative committee” to look into alleged criminal behavior by an elected official.
Forcing the attorney general to get permission from state politicians to investigate another politician would make politicians a special protected class and “violate the fundamental basis of our system of government that all people should be treated equally under the law,” the statement said.
“No one should be above the law,” Medlock, Condon and McMaster said.
Later Friday, Harrell’s office released statements and exhibits that it said showed Wilson’s actions are “politically motivated” and circumvent “clearly established constitutional and legal process(es).”
Harrell’s exhibits said in two major recent ethics cases – involving former Sen. Robert Ford and former Lt. Gov. Ken Ard – Wilson didn’t act until he got referrals from the Senate Ethics Committee in Ford’s case, and from the State Ethics Commission in Ard’s case.
“These are just a few of the many ethics cases that have been addressed since Attorney General Wilson came into office,” Harrell’s statement said. “Mr. Wilson followed that legal process in every single ethics case, that is, except for the matter dealing with Speaker Harrell.”
In court Friday, Wilson appeared to address that matter, telling Manning, “This case is unique.”
Manning said if he finds that Wilson lacks jurisdiction, at least until Wilson gets a criminal referral from the House Ethics Committee, then that “is a complete defense” for Harrell.
Asked later Friday if the State Grand Jury is continuing to investigate Harrell while Wilson’s jurisdiction is being questioned, a Wilson spokesman declined comment.
During the hearing, Manning peppered Wilson with questions.
Wilson wasn’t rattled. “Judge, if you let me get to the point, I can finish,” Wilson told him once, keeping his voice calm.
A State Grand Jury, which has the power of subpoena and uses professional investigators, is made up of citizens who don’t know Harrell. It has independent investigative powers, including the power to issue subpoenas and indictments that could result in serious fines or prison sentences.
Friday’s hearing, and a previous one challenging Wilson’s authority to investigate Harrell, were supposed to be secret. But after The State newspaper published a story March 13, a public outcry over court secrecy caused Manning to open the hearing.
Although Manning appeared to give weight to Landess’ letter being labeled an ethics complaint, he also appeared to be looking past labels into whether the allegations – despite the label – were in fact criminal.
“If you count a dog’s tail as a leg, how many legs does a dog have?” Manning mused aloud, paraphrasing a timeworn anecdote lawyers tell juries. “Four – you know why? A tail can never be a leg.”