The S.C. Supreme Court ruled, 4-1, Wednesday that Attorney General Alan Wilson can’t stop his special prosecutor, David Pascoe, from investigating possible corruption in the General Assembly.
Although Wilson tried to stop Pascoe – and apparently slowed Pascoe’s investigation for several months – the Supreme Court made it clear in its Wednesday ruling that Wilson acted unlawfully in trying to fire Pascoe and in trying to keep him from continuing his probe. Pascoe is working with the State Law Enforcement Division on the investigation.
“We find ... Pascoe was vested with the full authority to act as the Attorney General for the purpose of the investigation,” the opinion said.
Pascoe, as special prosecutor appointed by Wilson, has “all the power of the Attorney General, including the impaneling of a state grand jury,” the Supreme Court said.
After the opinion, Wilson’s office released this statement: “We respect the court’s decision and will abide by it.”
Pascoe released a statement saying, “I am gratified by the S.C. Supreme Court’s decision today. I’m currently in Virginia dealing with a family illness, but expect to return to South Carolina tomorrow to meet with (SLED) Chief (Mark) Keel and his agents to resume work on this matter.”
It was an embarrassing defeat for Wilson, who had publicly portrayed Pascoe as an incompetent, sixth-rate prosecutor with “nefarious intentions” who laced his recent pleadings to the Supreme Court with “half-truths, misinformation and at least one outright lie.”
And while Wilson had a stable of government lawyers to help him and hired a prominent private lawyer to argue his case June 16 before the Supreme Court, Pascoe prepared his own briefs and argued his case that day by himself.
In its 18-page majority opinion, the Supreme Court gave credence to none of Wilson’s allegations about Pascoe – personal or legal.
Instead, the high court’s majority said the answers to the main questions raised by the case – did Pascoe as special prosecutor have the authority to activate a State Grand Jury and can Wilson fire him – were easily answered: Pascoe has that authority, and Wilson cannot fire him.
“Wilson really humiliated himself by making allegations like that, by the fact he produced no evidence to support them, and then the Supreme Court found no basis for those allegations,” said John Crangle, director of S.C. Common Cause, a government watchdog group.
“The law and the facts were clearly on Pascoe’s side,” Crangle said.
The Supreme Court’s opinion means that Pascoe now is the effective acting Attorney General for the purpose of the General Assembly investigation – and Wilson can’t do anything to stop him.
Two of the lawmakers Pascoe appears to be looking at are named in a confidential SLED report first seen and reported on by The State newspaper: Rep. Rick Quinn, R-Lexington, and Rep. Jim Merrill, R-Charleston. Both say they have done nothing untoward.
Pascoe is 1st Circuit Solicitor, and his normal jurisdiction is the counties of Orangeburg, Dorchester and Calhoun.
John Freeman, ethics professor emeritus at the University of South Carolina Law School, said the majority opinion avoided getting tangled in legal minutia.
“It used common sense, logic and the factual record to knit together a very good opinion,” Freeman said. “It was very elegant, very simple and very fair.”
A key legal principle the court upheld is that once a lawyer recuses himself from a case, the lawyer cannot come back in and start interfering with the case, Freeman said. “When you are out, you are out.”
In making the decision, the Supreme Court “stood up on its hind legs and said, ‘We are a co-equal branch of government – we will do our job without fear and to the best of our ability and let the chips fall where they may,’” Freeman said.
The origins of the Pascoe-Wilson dispute date to 2014. That year, Wilson appointed Pascoe to be the “designated prosecutor” in the SLED investigation of former House Speaker Bobby Harrell. That investigation uncovered evidence that more lawmakers might be engaged in public corruption.
In the ensuing months, Wilson – citing a conflict of interest – recused himself from that investigation.
In the summer of 2015, Pascoe and SLED Chief Mark Keel received letters from the Attorney General’s office that said the entire office also was recusing itself. The letters gave Pascoe authority to continue the investigation.
However, early this year, when Pascoe and Keel tried to activate a State Grand Jury, Wilson and his office took steps to stop them, claiming that only Wilson himself could activate the State Grand Jury, with its special investigative powers.
Stymied, Pascoe filed motions with the Supreme Court asking it to declare who was in charge.
The Supreme Court rejected Wilson’s argument that only he could initiate a State Grand Jury probe.
The court said if it were to rule that only Wilson could start a State Grand Jury investigation, and if he ever became the target of a probe, he would wind up initiating a proceeding against himself. “We conclude such a holding would lead to an absurd result.”
The Supreme Court’s opinion gave great weight to an affidavit from SLED Chief Keel. Characterizing Keel as “a neutral witness,” the court wrote that Keel’s understanding was that since July 2015, “the entire Attorney General’s Office was recused from any further involvement in the investigation ... .”
Chief Justice Costa Pleicones wrote the majority opinion. He was joined by Associate Justices Don Beatty, John Kittredge and Kay Hearn. Associate Justice John Few dissented, writing that a circuit court judge, not the Supreme Court, should decide the issue.
Media lawyer Jay Bender said, “This was a high-level dispute resolved in public, contrary to the way things are often done in South Carolina.”
The State requested an interview with Wilson, but his office did not respond.