IN ORDER TO find that Attorney General Alan Wilson had no authority to replace the prosecutor in a legislative corruption probe, the state Supreme Court had to reinterpret an unambiguous state law, create a new constitutional entity and strip the attorney general of his unlimited constitutional authority to decide who prosecutes criminal cases.
Well, the court didn’t actually have to do all that, but it did. It seems to me that it could have allowed David Pascoe to initiate a State Grand Jury investigation merely by creating this new entity — “acting” attorney general — which it somehow managed to ordain “fully vested with the authority of the South Carolina Constitution.”
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Associate Justice John Few, writing in dissent, argued that the court didn’t have to reinterpret any laws, much less the constitution, to end up with Mr. Pascoe back in control of the investigation. Mr. Few wrote that “In all likelihood, the result would be the same” if the court sent Mr. Pascoe to a lower court to argue that Mr. Wilson had a conflict of interest, since judges clearly have the right to replace a prosecutor who has a conflict.
Alas, the majority did not follow his advice. The result is that we have a rewritten state law and a reinterpreted constitution, both with huge potential ramifications beyond what the court had in mind. We also have a strong disincentive for attorneys general to hand off cases that don’t rise to the legal level of a conflict of interest but that they really shouldn’t handle.
State law says the attorney general and the SLED chief must personally agree to launch a State Grand Jury investigation, but four of the five justices concluded that this limitation produces an “absurd result” that the Legislature could not have intended. So they declared that the law doesn’t really mean what it says. That, by the way, is an entirely legitimate reason to reinterpret a law — even a law as unambiguous as this one. Unfortunately, the court was wrong about the Legislature’s intention, which clearly was to limit this power to the elected attorney general, even if that meant there could be an occasion when a grand jury could not be empaneled.
Allowing the attorney general to designate some other prosecutor to launch a State Grand Jury investigation is a dramatic departure from the tight control our state has always placed on this powerful and intrusive investigative tool. More significantly, I don’t see how this opinion does not allow the SLED chief to designate someone else to take over his role in authorizing an investigation. Nor do I see how the hand-off authority can be confined to conflicts of interest: An attorney general and SLED chief could just lend out their authority because they felt like it.
Additionally, Pascoe v. Wilson essentially rewrote the constitution by declaring that when an attorney general recuses himself from any sort of case because he has a conflict of interest, whoever he hands it off to becomes acting attorney general, “fully vested with the authority of the South Carolina Constitution.” In so doing, the court created a new constitutionally empowered creature, the likes of which we’ve never seen before.
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Now, I doubt we’ll ever have to worry about seeing another acting attorney general, because I can’t imagine that any sane attorney general will ever again voluntarily recuse himself from a case. And that is unfortunate, because there clearly are times when an attorney general doesn’t have what a court would consider a legal conflict of interest, but it would still be better for him to take a hands-off approach.
But with the annunciation of this new entity — whose legal basis the court unfortunately did not explain — wouldn’t it make sense that other elected officials also can designate “acting” officials, “fully vested with the authority of the South Carolina Constitution”? Why couldn’t the governor designate someone to veto bills in her stead? Why couldn’t legislators designate someone to cast votes for them? Perhaps when someone tries to do that, the court will explain why other officials can’t give away their constitutional authority, and in so doing explain why an attorney general can.
Perhaps the biggest constitutional change in the decision is one not even acknowledged. Mr. Wilson said he fired Mr. Pascoe because Mr. Pascoe broke the law, but the court said that “Because we find Pascoe lawfully authorized the initiation of the state grand jury investigation, the Attorney General’s purported termination of Pascoe after the initiation of the state grand jury was ineffective.”
Attorneys general have always had unlimited authority to decide who prosecutes cases, an authority that includes reassigning cases. But this language suggests that they must now justify their decisions. This is an extraordinary diminishment of the attorney general’s constitutional authority, and unlike the court’s other two changes, I can’t think of anything attorneys general could do differently to avoid it.
Of course maybe that’s because the court didn’t explain the legal basis of this change either.
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 @CindiScoppe.