SOUTH Carolina’s constitution is not equivocal when it comes to the power of the attorney general over criminal prosecutions: “The Attorney General,” it says, in Article 5, Section 24, “shall be the chief prosecuting officer of the State with authority to supervise the prosecution of all criminal cases in courts of record.”
There is nothing unclear about that. Nothing open to interpretation. His word is final on what will and will not be prosecuted, who will and will not do the prosecuting.
Even when other entities are empowered to enforce the law, as with the Board of Medical Examiners or the other professional licensing boards — or the State Ethics Commission or House or Senate Ethics committees — the attorney general retains the right to step in if he believes that criminal laws are being violated. Certainly he may decline to do so, but that is entirely his call.
The Supreme Court has made this clear over and over, ruling for instance in the 1994 State v. Thrift public corruption case that both the constitution and the statutes “place the unfettered discretion to prosecute solely in the prosecutor’s hands.” That unanimous decision, written by then-Associate Justice Jean Toal, noted that “The Judicial Branch is not empowered to infringe on the exercise of this prosecutorial discretion,” although it can “review and interpret the results of the prosecutor’s actions.” After the fact.
Indeed, one of our legislators’ favorite justifications for not empowering an independent panel to review their own violations of the ethics law is the fact that the attorney general has complete authority to prosecute those cases that cross the line from simple reporting errors or inadvertent violations and become crimes.
Just last week, House members made the power of that constitutional provision crystal clear when they introduced legislation to let the Legislature appoint a special counsel to prosecute the attorney general and remove him from cases he already is prosecuting against elected officials: They knew that legislation would be meaningless unless they removed the “chief prosecuting officer” language from the constitution. Which they attempted to do, until they got smoked out.
The absence of even a hint of gray on this matter is what makes it so astounding that Circuit Judge Casey Manning is entertaining the idea of ruling that the attorney general and his State Grand Jury lack jurisdiction to investigate allegations that House Speaker Bobby Harrell has converted campaign funds to personal use.
The S.C. Policy Council’s online publication, The Nerve, reported earlier this month that Judge Manning has asked both sides to brief the question of whether the House Ethics Committee has sole jurisdiction over complaints against legislators.
Perhaps even more bizarre than the fact that a serious judge would seriously consider such a question is how vague Harrell attorney Gedney Howe was when asked whose idea this was. Instead of saying it was his, Mr. Howe said he didn’t remember. Now I suppose he could be embarrassed to admit that he came up with such a cockamamie idea; I certainly would be. But there is another possibility that makes this matter exponentially more worrisome: that Judge Manning could be the one who came up with this idea.
I can’t even begin to fathom how anyone could have concocted such a theory.
There was some bizarre language about ethics-law jurisdiction in the Supreme Court’s ruling last summer in Rainey v. Haley. And Mr. Manning would be quite familiar with that, as it upheld his decision to throw out GOP activist John Rainey’s appeal of the House Ethics Committee decision that Gov. Nikki Haley had not violated the ethics law. But that very familiarity should make Rainey the last thing Judge Manning would have in mind as he ponders limits on prosecutorial authority.
After all, while a very quick reading of Rainey does appear to give legislators rhetorical support for their argument against independent oversight, the order doesn’t actually say that the Legislature can’t delegate ethics oversight to non-legislators.
And even without the fact that Rainey doesn’t really say what it seemed to say, you still have two critical distinctions between it and the Harrell investigation. One involves allegations of a non-criminal ethics violation, the other allegations of a criminal violation of the ethics law. One involves an ethics complaint by a private citizen that was rejected and then appealed to the court, the other a possible criminal prosecution.
Surely Judge Manning recognizes those crucial distinctions between the two.
Surely Judge Manning realizes that there is no legal theory under which the House or Senate Ethics committee or the State Ethics Commission trumps “the chief prosecuting officer of the State with authority to supervise the prosecution of all criminal cases in courts of record.”
Surely Judge Manning knows, as Chief Justice Toal wrote in Thrift, that the “Judicial Branch is not empowered to infringe on the exercise of this prosecutorial discretion.”
Surely Judge Manning understands that a ruling that quashes a Grand Jury investigation of the speaker of the House, based on bizarre legal theories that have no basis in the state constitution or statutes, would define his entire legal career. Indeed, would haunt him for the rest of his life.
Policy Council President Ashley Landess is the person who asked Attorney General Alan Wilson to investigate Mr. Harrell’s campaign spending, and as she reminded me last week, she never filed an ethics complaint against Mr. Harrell. She considered filing an ethics complaint, she said, because she wanted to be as conservative as she could be in her approach. But she concluded that doing so entailed too many due-process problems, since the committee’s staff reports to Mr. Harrell.
So she took her allegations to Mr. Wilson, who eventually turned them over to SLED, which conducted a 10-month investigation. And in January, Mr. Wilson and SLED Chief Mark Keel sought and received judicial authorization to empanel the State Grand Jury to investigate further.
“We always thought this was public corruption,” Ms. Landess said. “There is a word for converting funds to personal use in the private sector, and it is embezzlement.”
Last I checked, that was a crime. Which prosecutors are free to prosecute as they see fit.
Ms. Scoppe can be reached at email@example.com or at (803) 771-8571. Follow her on Twitter @CindiScoppe.