SEN. JOHN COURSON will not go gentle into that good night.
His legal claim that common-law misconduct in office is not actually a crime in South Carolina is the most audacious attack yet on Solicitor David Pascoe’s investigation into legislative corruption. And that’s saying quite a lot, given that Mr. Pascoe did battle with then-House Speaker Bobby Harrell.
If the courts buy Sen. Courson’s argument, that could unravel Mr. Pascoe’s entire investigation, which has snared four powerful Republican legislators, put the state’s biggest GOP political consultant in its sights and driven legislators to a level of paranoia not seen since a 1990 corruption probe brought the weight of the federal government down on the State House. Without that charge, Mr. Pascoe would be left with minor charges that could result in convicted legislators remaining in office.
A ruling in Mr. Courson’s favor also would deprive prosecutors the state over of a valuable if not often used tool for prosecuting public officials.
For the record, I do not expect Mr. Courson’s motion to succeed. It is, in the words of one of the state’s leading experts on constitutional law and the applicability of criminal statutes, “a strange argument” that is “unprecedented” and “unsupported in current law.”
And even if he manages to get the charges dismissed, that won’t undo the damage that has been done to his reputation by charges that he used political consultant Richard Quinn to launder campaign donations into personal funds.
The only way he can undo that damage is to deliver on assurances to friends that he has an explanation for how his actions were legal — an explanation that I and many other Courson friends are at a loss to imagine.
But we’ve seen the state Supreme Court buy arguments before that were unprecedented and unsupported in current law, so it’s worth taking this motion seriously enough to understand it.
Mr. Courson was indicted in March on three charges: using campaign funds for personal expenses, statutory misconduct in office and common-law misconduct in office. The important charge is common-law misconduct in office, because it carries a sentence of up to 10 years in prison, enough to trigger a state law that requires legislators to be suspended from office upon indictment. As I’ve explained before, common-law misconduct is a breathtakingly broad charge that does not require the defendant to be convicted of committing any actions we typically consider crimes; it can apply when he acts legally but with the mere intention of enriching himself.
Common-law misconduct is Mr. Pascoe’s go-to charge. With it, he was able to get Mr. Harrell suspended as speaker — which stripped him of the vast powers he had used to attempt to stymie the investigation. With it, he was finally able to win a plea agreement in his other high-profile case, after juries twice refused to convict former Eutawville Police Chief Richard Combs of murder or voluntary manslaughter for killing an unarmed man who was trying to drive away after going to the police department to get his daughter’s traffic-court appearance delayed. And of course he included it in the corruption indictments against former House Republican leaders Jim Merrill and Rick Quinn, both of whom are as a result suspended from office as they await trial.
Appellate courts in this state, like well-behaved children, do not speak unless spoken to and do not answer questions they are not asked.
But Mr. Courson’s attorney, Rose Mary Parham, argues that the common-law crime of misconduct was effectively repealed in 1829 when the Legislature created a statutory crime of misconduct in office, which is essentially the same crime but carries a penalty of no more than one year in prison — not enough to trigger the suspension of legislators. She points to an 1854 state Supreme Court order that seems to back up her argument.
What she doesn’t note is how many years former public officials have spent in prison for violating this law that she says hasn’t existed since 1829. Or how many times the state Supreme Court has upheld convictions for common-law misconduct — beginning with the landmark 1983 case of South Carolina v Hess, which involved the notorious case of a former Columbia police chief, when the court went so far as to define the elements of the crime. Ms. Parham says the court couldn’t declare then that the misconduct charge didn’t exist because the defense didn’t ask it to, quoting a later ruling that declared that “appellate courts in this state, like well-behaved children, do not speak unless spoken to and do not answer questions they are not asked.”
I suspect the court would be unimpressed with that claim since, again, it was the court itself that defined the elements of the law.
For all I know, that could be a fair point, but it’s hard to imagine the Supreme Court nullifying a law that it birthed.
Ms. Parham’s fall-back argument is that even if common-law misconduct is a crime, charging Mr. Courson with both that and the nearly identical statutory misconduct amounts to double-jeopardy. Her second fall-back is that since they are essentially the same, only the shorter sentence can apply. Her third fall-back position is that both charges are unconstitutionally vague.
I agree that the common-law charge is astonishingly vague (and the statutory law is quite similar), though I suspect the court would be unimpressed with that claim since, again, it was the court itself that defined the elements of the law. But if the court does agree with her and this whole investigation evaporates, don’t say no one warned you.
Ms. Scoppe writes editorials and columns for The State. Reach her at firstname.lastname@example.org or (803) 771-8571 or follow her on Twitter or like her on Facebook @CindiScoppe.