Top SC House Republican named in secret SLED report | The State

Rep. Jim Merrill, R-Berkeley, is one of the S.C. House of Representatives lawmakers named in still-secret portions of a two-year-old SLED report now undergoing a fresh review by a special prosecutor, according to sources familiar with the investigation.

No one has made public exactly what is said about Merrill in the redacted, or censored, parts of the State Law Enforcement Division report. But the sources made it clear that Merrill’s conduct in various matters is under review by special independent prosecutor David Pascoe.

Merrill is being represented in this matter by noted defense attorney Scott Schools, according to sources. Being mentioned in a SLED report is not in itself evidence of wrongdoing, and many people caught up in an investigation hire attorneys when they are innocent, just so they know their situation is well represented.

Merrill declined repeated requests for comment made over two days last week by The State newspaper reporters.

Merrill, 48, is a public relations and marketing consultant who lives on Daniel Island and owns Geechee Communications. First elected to the House in 2001, Merrill has deep ties with the S.C. Republican Party. He served a stint as the party’s political director and worked for the late U.S. Rep. Floyd Spence of Lexington County, and for U.S. Rep. Mark Sanford of Beaufort when Sanford was a member of Congress in the 1990s. Spence was close to U.S. Rep. Joe Wilson, of Lexington, who took Spence’s seat after Spence died and whose son, Alan Wilson, is South Carolina’s attorney general.

In the 124-member House, Merrill serves on the powerful, budget-writing Ways & Means Committee. From 2004 to 2008, Merrill served as majority leader of the House Republicans. Merrill also is S.C. campaign director for current 2016 Republican presidential front-runner Donald Trump.

In an email response to a query by The State newspaper, Schools said he “could not possibly have any comment about some redacted report that is not publicly available, nor would I confirm or deny any rumor about whom I do or do not represent.”

Schools, of Charleston, was a U.S. government prosecutor in Lost Trust, a major S.C. General Assembly scandal in the 1990s that resulted in bribery convictions of more than a dozen lawmakers. Schools also recently represented former Lexington County Sheriff James Metts, who pleaded guilty earlier this year to federal charges of illegally releasing two Mexican immigrants from jail. Schools was also an interim U.S. attorney for the Northern District of California.

The 42-page SLED report was finished in December 2013, but this summer took on a new life when Pascoe was asked to be a special prosecutor for the reacted portion.

Most of the report, which was initiated by Attorney General Wilson in 2012, involved allegations of financial irregularities and ethical misconduct by then-House Speaker Bobby Harrell. The report triggered further investigation of Harrell that resulted in his resignation and guilty plea last October for illegally using campaign money for personal use and cheating on government expense accounts.

But that Harrell report also contained eight redacted pages of allegations about various other S. C. House of Representatives members. It is those eight still-secret pages of allegations that Pascoe is now reviewing, the sources said.

Other state lawmakers are named in the secret portions of the SLED report, but people familiar with those parts are not at this time divulging their names. It is not known whether any of them have retained attorneys.

Pascoe, who is 1st Judicial Circuit solicitor based in Orangeburg County, told The State newspaper he does not know when he will finish his review. He is currently juggling many cases, including a half-dozen murder cases and a complex investigation involving the Dorchester County coroner, he said.

“But we are taking this very seriously,” Pascoe said.

He would not comment further.

Who should prosecute?

It is not surprising that Pascoe is now the special prosecutor reviewing the confidential pages of the SLED report.

In July 2014, Attorney General Wilson named Pascoe special prosecutor in the case against Harrell after Wilson had been accused of having a conflict of interest in the case. Wilson called the allegation “baseless,” but stepped aside to keep the investigation going.

Pascoe, SLED and attorney general office prosecutors then further investigated and took a case to the Richland County Grand Jury for an indictment.

Even before Harrell pleaded guilty Oct. 23, 2014, Pascoe had noticed the eight pages concerning lawmakers other than Harrell in the 42-page SLED report.

On Oct. 1, 2014, Pascoe emailed Wilson, alerting him about more possible corruption in the state Legislature. This email and other correspondence in the matter were provided to The State newspaper recently by Wilson’s office.

“I went back and reviewed the SLED report,” Pascoe emailed to Wilson on Oct. 1. “I definitely think this is something that should be looked into with regards to any corruption probe on the legislature.”

Pascoe specifically told Wilson to examine the redacted eight SLED pages: “Take a look at pages 34-42 of (SLED) Lt. Kevin Baker’s report and let me know what you think.”

The next day, Wilson emailed one of his top lawyers, chief deputy attorney general John McIntosh, sending him a copy of Pascoe’s Oct. 1 email.

In that Oct. 2 email to McIntosh, Wilson said that “there might be inherent conflicts between myself and members of the House referenced in the (Pascoe’s) email.”

Wilson continued: “Because certain conflicts might exist I want you (McIntosh) to take over as supervising prosecutor. I would have no further involvement in a case involving these specific members where such a conflict may arise. Please ensure that I am firewalled ...,” Wilson wrote, apparently asking McIntosh to work without telling Wilson what he was doing.

Greg Adams, ethics professor at the University of South Carolina School of Law, said choosing an outside independent prosecutor would have been a better alternative.

“It is always better, and is likely to encourage public confidence, to hand these matters to an independent solicitor,” said Adams, adding that such a hand-off is best done “clearly and decisively and as early as possible.”

McIntosh makes $157,000 a year and works as an “at will” employee – meaning he can be fired at any time.

Adams noted that McIntosh, who has served under three prior attorneys general and has years of prosecutorial experience on state and federal levels, has a “vast institutional memory” and is likely to be advising Wilson on numerous matters regularly.

“It is awfully difficult for somebody to screen himself from something that a direct subordinate is handling,” Adams said.

A ‘dropped football’?

On Nov. 25, acting in response to numerous Freedom of Information requests, SLED released copies of the 42-page report on Harrell, documenting numerous questionable expenditures and ethics violations. Some eight pages in the report were redacted.

Nearly two months ago, on July 17 – some 10 months after Pascoe brought the eight pages to Wilson’s attention – McIntosh wrote SLED chief Mark Keel about the SLED report concerning Harrell.

“Dear Chief,” began McIntosh’s letter that was provided to The State newspaper by the Attorney General’s office, “SLED conducted an investigation into the above matter and completed an investigative report. Portions of this report were redacted that involved members of the General Assembly.

“This is to request that, upon completion of the investigation of those persons, the report be forwarded to Solicitor David Pascoe for a prosecutive decision,” McIntosh wrote Keel. “As you are aware, the Attorney General recused this office from the legislative members in the redacted portions of the SLED report, but has not recused this office from any other matters.”

A week later, on July 24, assistant deputy attorney general Creighton Waters, who works under McIntosh, wrote Pascoe, telling him that Wilson had “firewalled himself from any involvement into the investigation of certain individuals covered in the still-redacted portion of the SLED report. ... That portion of the investigation still remains open.”

Waters also told Pascoe that McIntosh had sent Keel the July 17 letter asking SLED to give Pascoe “the results of any further investigation into the matters covered in the redacted portions of the SLED report.”

It is unclear why McIntosh, whom Wilson in October had designated the special prosecutor for lawmakers named in the secret SLED pages, waited until July to pass that mandate off to Pascoe for a decision about whether anyone should be prosecuted.

Exactly what McIntosh did during those 10 months in connection with the eight pages is unknown. The attorney general’s office declined to make McIntosh available for an interview, but said that SLED during that time continued to investigate.

In an email Friday, attorney general spokesman J. Mark Powell said, “During the 10 months from October 2014 to July 2015, law enforcement conducted additional investigation into redacted portions of the SLED report, as requested by Mr. McIntosh. As this Office awaited law enforcement to complete its thorough investigation, a decision was made in July 2015 out of an abundance of caution to refer the matter to Solicitor Pascoe, who already had a familiarity with the case.”

Powell also emailed, “It is inappropriate and unethical for anyone with a prosecution or law enforcement agency to disclose or comment on the specifics of this or any other pending investigation until it is completed. Such disclosure could be considered interfering with a law enforcement investigation. If someone has provided you such information, you may want to consider reporting them to the police.”

John Crangle, president of S.C. Common Cause and for more than 25 years a close observer of ethics issues in the S.C. General Assembly, said last week that it should not have taken 10 months for McIntosh to give Pascoe in July a green light to review a situation that Pascoe had brought to the Attorney General’s attention last October.

“I call that a dropped football,” Crangle said. “Once the names of the lawmakers in the secret report are disclosed, I think people will find that of great interest.”