An already-hot battle between S.C. Attorney General Alan Wilson and his special prosecutor heated up Tuesday when Wilson’s office announced he was appointing 5th Circuit Solicitor Dan Johnson as the new special prosecutor in an investigation into public corruption in the General Assembly.
It was not clear Tuesday whether Johnson, who serves in the S.C. National Guard with Wilson, will take the job and replace 1st Circuit Solicitor David Pascoe, who Wilson said he fired Monday.
Johnson, who recently told a reporter he was headed to South America to do a stint there with the National Guard, on Tuesday did not return requests for comment. Johnson is the top elected prosecutor in Richland and Kershaw counties and was first elected in 2010.
Unlike many solicitors, Johnson generally does not try cases. However, many of his staff of assistant prosecutors are regarded as more than competent by the Columbia area’s legal community. Some are considered among the state’s top prosecutors who nearly always win high-profile cases.
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The appointment of Johnson was made in a letter from Wilson’s chief deputy attorney general John McIntosh. The letter was released Tuesday by Wilson’s office.
McIntosh’s letter accused Pascoe of attempting “to usurp the authority to initiate a State Grand Jury investigation when no such authority had been delegated to him by the Attorney General.”
The letter also noted that “multiple leaks to the media” had been made during the time that Pascoe has had the case. However, the letter did not specifically accuse Pascoe of leaking information to the media.
The letter also said Johnson would “have full authority to review the matter and this office will fully support whatever decision you deem appropriate.” Johnson also will have the power to use a State Grand Jury, the letter said.
But Pascoe is refusing to step down, saying Tuesday he wants the S.C. Supreme Court to decide the matter. He contends Wilson, who has recused himself from the matter because of a conflict of interest, cannot fire him.
In the wake of the historic battle royale between state Wilson and Pascoe, only a few things are certain:
“The fallout from this will be massive. Everyone is betting all the chips,” said S.C. House Rep. Kirkman Finlay, R-Richland, meaning Wilson and Pascoe, both elected officials, have their reputations and their careers on the line.
On Monday morning, The State newspaper disclosed that Pascoe had filed a petition with the state Supreme Court accusing Wilson of trying to kill an ongoing SLED investigation into public corruption in the legislature. In the petition, Pascoe asked the Supreme Court to intervene and essentially order Wilson to stop blocking the investigation, which is in its final stages.
Here’s how it played out Monday:
On Tuesday, Wilson said he was appointing Johnson to replace Pascoe.
The outcome of the Wilson-Pascoe battle may determine whether the investigation into alleged Legislative corruption conducted by Pascoe and SLED Chief Mark Keel goes forward or is scuttled.
Meanwhile, there is no shortage of opinion on Wilson’s attempt to fire his own special prosecutor and what should happen next.
John Freeman, distinguished professor emeritus of business and law at the University of South Carolina Law School, said Monday that in 2014, when Wilson first appointed Pascoe as special prosecutor, Wilson described Pascoe as being independent and respected, Freeman said.
Pascoe went ahead and indicted and got a guilty plea from former House Speaker Bobby Harrell within weeks of being appointed special prosecutor, Freeman said.
Now, as Pascoe is apparently reaching an end to an outgrowth of that investigation, and possibly on the verge of producing indictments against state lawmakers, it looks bad to the public that Wilson is trying to yank Pascoe –who won a guilty plea against Harrell – off the case, Freeman said.
“We live in a day and age when the public doesn’t trust officials very much to begin with, and that’s one reason we have conflict of interest rules,” Freeman said. Putting an end to Pascoe’s tenure as special prosecutor is sure to “feed the frenzy of public distrust,” Freeman said.
“I would like to see the Supreme Court take this up, and let the chips fall where they may,” Freeman said.
But Lt. Gov. Henry McMaster, a former state attorney general and former U.S. attorney, said Wilson has the law on his side when he says he can terminate Pascoe.
“As far as designating a special prosecutor, and then undesignating him, that is purely at the attorney general’s discretion,” McMaster said. “That can be done for any reason – or for no reason at all. With the power to appoint comes the power to un-appoint.”
The attorney general also can appoint a new special prosecutor to a case where he has removed a current special prosecutor, McMaster said.
Former U.S. Attorney Pete Strom, now a Columbia lawyer, said Tuesday that on one hand, the public firestorm between Wilson and Pascoe might have been avoided if Wilson had not fired Pascoe. Both men are friends of his, Strom said, and he imagined himself giving advice to each.
If he were attorney general in Wilson’s place, Strom said, he would “back away” from the controversy and let Pascoe do his job as special prosecutor.
If Pascoe’s methods and procedures are flawed, “the judicial system has many checks and balances,” including defense attorneys, a grand jury, a judge and ultimately, a trial by jury, Strom said.
“Wilson did recuse himself, so the better course here is to trust the system after recusing himself because the optics (how the matter looks to the public) are not good,” Strom said.
“On the other hand, if Solicitor Pascoe asked me for advice, I would advise him to proceed – but cautiously. If significant issues are raised about a matter like his impartiality, I would advise him to recuse himself, or bring in some respected solicitors as advisers, such as (2nd Judicial Circuit) Solicitor Strom Thurmond or (13th Judicial Circuit) Solicitor Walt Wilkins, both former U.S. attorneys with extensive grand jury experience,” Strom said.
Former prosecutor and Rep. Tommy Pope, R-York, said that while serving as 16th Circuit solicitor, one of his guiding principles was “if you just do your job, the politics take care of themselves.
“It’s only when you start making decisions politically that it calls your credibility into question. That’s what kind of seems to be happening here.”
Avoiding specific comment on the Wilson-Pascoe case, Pope said that speaking generally, when a prosecutor takes himself out of a case because of a conflict of interest, “it seems to be the very thing that caused a conflict would keep you from having any further involvement in any manner.”
Sen. Greg Hembree, R-Horry, a former solicitor for the 15th Circuit, called the current conflict between Wilson and Pascoe “unprecedented” in any state political and legal history he is aware of.
When he was solicitor, Hembree said, “even if there was a wisp of impropriety, I conflicted myself out. From that point forward, I was totally out of the case.”
On the other hand, if a prosecutor sees that justice is not being done by a special prosecutor, Hembree said, that might call for the special prosecutor’s removal.
Given that both Pascoe and Wilson have starkly different positions, the best course of action might be to get a judicial ruling, Hembree said.
“When you have a dispute like that, somebody needs to settle it,” Hembree said.
Monday’s battle of the prosecutors
Few days in South Carolina have generated as much controversy and ongoing news coverage as Monday’s disclosure by The State newspaper of special prosecutor David Pascoe’s allegation in the S.C. Supreme Court that Attorney General Alan is trying to shut down a State Grand Jury investigation into public corruption in the Legislature.
Here’s a chronology:
10 a.m.: A State newspaper reporter picks up from the state Supreme Court a copy of a petition filed by Pascoe. The document asks the court to order Wilson to stop interfering in his and SLED Chief Mark Keel’s investigation of public corruption among state lawmakers.
11:30 a.m.: The State newspaper posts a story that Pascoe’s petition says Wilson is trying to kill Pascoe’s investigation.
11:50 a.m.: A Supreme Court official contacts the newspaper and asks it not to publish any more about the document. The official also asks The State not to publish the petition. The newspaper declines, telling the official the story is of high public interest and that the document was obtained legally and openly and that the newspaper paid $13.40 in copying costs for it.
12:51 p.m.: The attorney general’s office issues its first comment on Pascoe’s petition and the news stories. A spokeswoman denies the office is blocking a public corruption probe and asserts “we have grave concerns that Solicitor Pascoe is not following the law or proper procedure.”
Later in afternoon: Attorney General’s chief deputy attorney general John McIntosh sends to news media a copy of a letter he has just sent to Pascoe. The letter notifies Pascoe he has been fired as special prosecutor.
6:40 p.m.: Pascoe sends out a copy of a letter he just sent to McIntosh. Pascoe denies acting improperly, refuses to step aside and invites the attorney general to bring his concerns to the Supreme Court. The Attorney General’s office now has 20 days to respond to Pascoe’s petition, which was filed Friday.
Attorney General Alan Wilson has 20 days from last Friday to respond to 1st Circuit Solicitor David Pascoe’s petition to the S.C. Supreme Court.
How will 5th Circuit Solicitor Dan Johnson respond to his appointment as the purported new special prosecutor? As of Tuesday evening, Johnson had not publicly agreed to accept the appointment.
How We Got Here
July 24, 2014: Attorney General Wilson appoints David Pascoe as special prosecutor to head up State Law Enforcement Division’s investigation into alleged public corruption in the Legislature. Wilson cites Pascoe’s “credibility, professionalism and integrity.”
Fall 2014: Pascoe indicts former House Speaker Bobby Harrell, who pleads guilty to misusing campaign money and resigns. Pascoe returns SLED report to Attorney General’s office. SLED report is redacted in one place but is said to contain evidence of public corruption against two or more members of the General Assembly.
July 2015: Wilson’s office writes SLED Chief Mark Keel, telling Keel to continue investigating members of the General Assembly and turn the results of the investigation over to Pascoe “for a prosecutive decision.” The letter tells Keel that because Wilson has a conflict of interest, Wilson’s office has recused itself from investigating lawmakers mentioned in the SLED report.
July 2015: Wilson’s office notifies Pascoe that “the Attorney General (has) firewalled himself from any involvement into the investigation of certain individuals” in the SLED report.
December 2015: Wilson’s office issued an opinion saying the actions of some GOP legislators, which Pascoe had questioned, were not improper.
July 2015 to March: SLED and Pascoe’s investigation continues. In March, SLED and Pascoe request special powers of the State Grand Jury. Wilson jumps back into the case and fires Pascoe, who argues he can’t be fired and appeals to the S.C. Supreme Court to resolve the matter.
ABOUT ALAN WILSON
Wilson, 42, graduated from Francis Marion University and the University of South Carolina School of Law. He is a National Guard major who did a year’s tour of duty in Iraq.
Wilson, who is the son of Republican U.S. Rep. Joe Wilson, worked as an assistant solicitor for 11th Circuit Solicitor Donnie Myers and is a former state assistant attorney general.
He was first elected S.C. attorney general in 2010.
In 2011, Wilson initiated a State Grand Jury investigation into alleged illegal use of campaign money by Ken Ard in his successful 2010 bid for lieutenant governor. Ard resigned, pleaded guilty to seven ethics and campaign spending charges and got five years probation.
In January, the S.C. Ethics Commission cleared Wilson of allegations that he himself accepted improper contributions in his 2010 campaign. He already had refunded more than $40,000 to donors.
ABOUT DAVID PASCOE
Pascoe, 47, graduated from The Citadel and the University of South Carolina School of Law. He has more than 20 years of experience as a prosecutor.
In 1993, he became an assistant solicitor for 5th Circuit, in Richland and Kerhsaw counties. He also worked as a prosecutor for the state attorney general's office. He was first elected solicitor as a Democrat in the 1st Circuit, in Dorchester, Orangeburg and Calhoun counties, in November 2004.
In 2011, his fellow solicitors elected him president of the state solicitors’ association.
After SLED, the FBI and the U.S. Department of Justice declined at first to press charges against former Eutawville Chief Richard Combs in connection with his 2011 fatal shooting of an unarmed African-American man, Pascoe did. After two hung juries, Combs pleaded guilty to misconduct in office and got five years probation.
In 2014, with weeks of being appointed special prosecutor by Attorney General Wilson, Pascoe secured an indictment against former House Speaker Bobby Harrell that resulted in Harrell’s guilty plea on charges of misuse of campaign finance money and Harrell’s resignation.