WHEN then-Lt. Gov. Ken Ard paid for vacations, clothes and home electronics out of his campaign account, the attorney general asked SLED to investigate.
When investigators finished digging, the SLED chief and attorney general asked a judge to authorize an investigation by the State Grand Jury, which eventually indicted Mr. Ard on multiple corruption charges.
The process played out the same way when Sumter School District 17 finance director Joe Klein engaged in a decade-long embezzlement scam. And when a gift-giving scandal at the state highway department pointed to the Thrift Brothers construction company.
In fact, the process has played out according to that script in hundreds of public corruption, investment, environmental, pornography and drug crimes over the quarter-century since the powerful State Grand Jury was created to give prosecutors tools they needed to investigate complex crimes.
Until Bobby Harrell.
South Carolina’s once all-powerful House speaker put our criminal justice system to the test, and it came up lacking. In the end, Mr. Harrell was indicted and stripped of his power and pleaded guilty to a half-dozen corruption charges. But it was a tortuous process, one that points to several significant flaws in our judicial and political systems, in our laws and our procedures
The investigation was abnormal and outrageous and unprecedented and out-of-bounds from the beginning. Before the beginning actually.
Nearly a year before Attorney General Alan Wilson asked to use the State Grand Jury to investigate allegations that Mr. Harrell had misused his campaign account to pay for personal travel on his private plane, the speaker’s underlings tried to sneak a change into state law to decriminalize the crimes that Mr. Harrell eventually would admit to committing.
Then, the day after Mr. Wilson and SLED Chief Mark Keel announced the Grand Jury probe, the speaker called a news conference to accuse the attorney general of pursuing “a blatant smear campaign” designed “to inflict political damage on me.”
He never explained what would possess a freshman attorney general to launch a baseless attack against perhaps the most powerful member of his own party, a person who can control his budget and make or break his legislative agenda. Nor did he provide any support for the allegation.
Mr. Harrell already had hired a couple of high-priced criminal defense attorneys, using money from his bulging campaign account — a perfectly legal expenditure that ought to be just as illegal as using that account to pay for personal travel. In the weeks after the speaker’s outlandish political allegation against the attorney general, his attorneys turned it into an even more audacious legal charge, filing court documents under seal seeking to have Mr. Wilson removed from the case.
Just stop for a moment and imagine a drug kingpin trying to get his prosecutor dismissed — before he even has been charged with a crime. The effort would be laughed out of court. Yes, the Thrift Brothers had been able to get their bribery convictions overturned, but that was only after they were indicted.
As the legal assault proceeded, Mr. Harrell’s underlings opened a second front: Again this year, they tried to sneak a change into the ethics law to decriminalize his crimes. They also filed a separate bill to grant one-time immunity to legislators who committed the crimes Mr. Harrell was being investigated for — and failed to include the standard language that makes it apply only to future investigations.
In their most audacious move, 85 of the 124 House members proposed to strip the language from the state constitution that makes the attorney general “the chief prosecuting officer of the State with authority to supervise the prosecution of all criminal cases.” They also proposed to let the speaker and the Senate president pro tempore name a special prosecutor to investigate the attorney general.
The legislative efforts failed, but Mr. Harrell got even more than he asked for from Circuit Judge Casey Manning: Instead of dismissing Mr. Wilson as prosecutor, he quashed the investigation. He ruled that only the Legislature could investigate legislators — a dangerous decision that ignored the state constitution and turned on a complete misreading of both the law and Supreme Court precedent.
The Supreme Court unanimously reversed the decision, but it ordered Judge Manning to consider the original question of replacing the prosecutor, and it threw in an unprecedented, and unsupported, footnote instructing the judge to close off public access to the case.
The footnote grew out of Chief Justice Jean Toal’s claim in open court that Mr. Wilson’s January news release announcing the grand jury referral was “unprecedented.” That echoed charges the Harrell camp had been making all year. The chief justice said she had “never heard of having a news release to announce you’re going to submit something to the Grand Jury, ever.” In fact, attorneys general had sent out news releases at the same point in the Ard investigation and at least three other high-profile cases, and had confirmed grand jury investigations in at least a half-dozen other cases.
Although Judge Manning and the Supreme Court made some bad calls, I have no evidence that any judge was playing favorites, and every bit of my being hopes that none was. But it would be irresponsible not to note that the General Assembly decides who gets to become a judge, and who gets to remain a judge, who gets to be chief justice and who doesn’t. And because of the numbers, the House controls that process. And because of the awesome power the speaker has to make or break individual House members’ legislative agendas, the speaker himself can control the outcome of an individual judicial election if he decides to make it his priority. It would be irresponsible, too, not to note that Mr. Harrell was the chief justice’s chief supporter earlier this year when she barely beat back an unprecedented challenge from Associate Justice Costa Pleicones.
Even if no judge acted inappropriately, this case underlines the problems inherent of giving the Legislature such complete control over another branch of government. And of giving so much power to the speaker.
A criminal justice system too tenuous
Far more troubling than what Mr. Harrell did is how very easily it would have been for things to turn out differently.
How very easily Mr. Wilson could have folded to the tremendous political pressure to back down.
How easily the investigation could have been shut down if Judge Manning had just reassigned it to someone who wasn’t interested in prosecuting, rather than fixating on his misinterpretation of the constitution and the law and the Supreme Court precedents.
How easily the investigation could have faded into nothing if Mr. Wilson had not snookered the judicial system, by secretly handing the case off to a circuit solicitor, who used a county grand jury to complete the investigation.
I don’t mean to imply that Mr. Wilson did anything wrong here. Quite the opposite: The only reason the courts had any power over this investigation was because it involved the State Grand Jury. And the fact that the judiciary controls that process is another thing that needs to be changed.
Mr. Wilson was perfectly free to pursue the case in any way he chose outside of the Grand Jury. And doubly so once, as legal documents strongly imply, Judge Manning essentially shut down the Grand Jury — and kept it shut down even after the Supreme Court explicitly authorized its continuation.
The point is that it took a tremendous amount of creative thinking to come up with that work-around. It took a tremendous amount of humility to turn the case over to First Circuit Solicitor David Pascoe — and then to play along with Judge Manning and Mr. Harrell’s defense team, allowing them to believe they were calling the shots. And it took a tremendous amount of courage to carry through that plan — courage that I suspect Mr. Harrell injected into the attorney general by coming after him so hard.
If you’re feeling good about the fact that Mr. Harrell was indicted and pleaded guilty, if you feel like everything worked out in the end, you should think a little more about what it took to get to this point: Two prosecutors were convinced that they had to do an end run around the judiciary in order to ensure that an investigation was allowed to run its course. An investigation into crimes that Mr. Harrell admitted in court he had committed.
That should trouble us all.
A system that relies on having just the right people in just the right positions, willing to stretch the envelope to do their jobs, is a broken system.
It is a system that will fail more often that it works. Because more often than not, even if we have good people in place, we don’t have precisely the right people in precisely the right positions at precisely the right moments.
If we don’t repair that system, then we deserve all the corruption and unchecked abuses of power that we get. And we’ll get plenty of it.