Special prosecutor David Pascoe told S.C. Supreme Court justices on Thursday that if they agree that Attorney General Alan Wilson can fire him from an ongoing investigation into public corruption in the S.C. General Assembly, they will be giving Wilson unprecedented power to scuttle investigations he has recused himself from.
Wilson, citing conflicts of interest, removed himself from the investigation last year and designated Pascoe, the state’s 1st Circuit solicitor, as an independent special prosecutor in the case.
But now Wilson is trying to fire Pascoe, who along with State Law Enforcement Chief Mark Keel, activated a State Grand Jury in March because, Pascoe told the justices Thursday, new information has prompted SLED to delve deeper into the allegations of public corruption.
After Wilson tried to stop him from moving ahead with the investigation, Pascoe asked the Supreme Court to intervene.
In legal filings and public statements, Wilson has downplayed his attempted firing of Pascoe, portraying it as a disciplinary move and asserting he will replace Pascoe with 5th Circuit Solicitor Dan Johnson so the investigation can keep going.
Wilson’s argument prompted Chief Justice Costa Pleicones to ask Pascoe during the hearing: “Everybody seems to be happy with an ongoing State Grand Jury. The attorney general ... says it can go forward – but with Solicitor Johnson instead of you.”
Pascoe retorted, “Who is going to stop the attorney general when he wants to remove Dan Johnson?”
Further underscoring why Wilson should keep his distance from the investigation, Pascoe told the justices, “The attorney general had this case for 19 months and did nothing with it.”
For more than an hour Thursday, all five justices peppered opposing lawyers with more than 50 questions in the dispute over whether an attorney general who has recused himself because of a conflict of interest can jump back into a case and fire the special prosecutor who is trying to dig deeper. The State Grand Jury Pasco wants has special powers and can subpoena emails and telephone records, among other things.
Wilson asserts Pascoe committed a fireable offense when Pascoe in March, along with SLED Chief Mark Keel and Judge Clifton Newman, activated a State Grand Jury. Only the attorney general, in tandem with the SLED chief and a judge, can activate a State Grand Jury with its special investigative powers, Wilson says.
At the hearing’s end, justices took no action. Neither did they signal when they might rule on the highly publicized case.
After the argument, a grim-faced Wilson left the courtroom with top members of his legal staff without stopping to talk to the press. He had hired Mitch Brown of Nelson Mullins to argue the case.
Pascoe, who argued his own case to the court, also declined comment.
Pascoe had answered all 20-plus questions justices threw at him, including, as Justice Don Beatty wanted to know, the definition of “recusal.”
“Very simple,” said Pascoe. “It’s when someone removes himself entirely from a case, especially because of a conflict of interest. When you step off a curb, you do not get back on the curb.”
When Justice John Kittredge wanted to know if there was a type of recusal that “allowed an individual to keep a finger in the pie.” Pascoe said he didn’t know of any.
Wilson’s lawyer Brown spoke bluntly, citing various laws and records and portraying Pascoe as a publicity-hungry upstart out to usurp Wilson’s legitimate authority in activating state grand juries.
Pascoe’s activation of the State Grand Jury “was an illegal act,” Brown said. “Solicitor Pascoe, with all due respect, does not have the acting attorney general powers he claims to have been given.”
Associate Justice Kaye Hearn asked Brown about letters Pascoe had from the Attorney General’s office granting Pascoe “‘full power to prosecute this matter.’ ... What does that mean?”
Brown replied those letters are misleading.
Again, Hearn asked about letters from the the attorney general’s office, including one from Wilson’s chief deputy attorney general John McIntosh in which Pascoe was told he had “full power to prosecute this matter.”
Brown told Hearn that McIntosh had misspoke. “As we know, that was an error.”
Brown also took a shot at Pascoe, implying without being specific that he had leaked matters to the media. “He has run a ship where there have been multiple leaks,” Brown told the justices.
Later in the hearing, Pascoe told the justices he didn’t leak information and, moreover, he offended reporters “because I won’t talk to them. No leaks have come from my office in this case.”
Two months ago, Wilson held a press conference in which he angrily denounced Pascoe for filing actions in the Supreme Court that led to Thursday’s hearings. Wilson told reporters they contained “half-truths” and lies. A top aide for Wilson also was found to have hatched a plot to initiate a smear campaign against Pascoe to destroy his reputation.
Aware of the rancor Wilson had directed at Pascoe, justices took pains Thursday to say publicly that everyone in the case are decent sorts.
At one point, Justice John Kittredge said, “I think all the parties in this case are honorable people.”
At another point, Pleicones said, “This court has a very vexing task now because we know the personal integrity of everyone involved is not in question.”
Thursday’s arguments had historic overtones and touched on all three branches of state government – the judicial, the legislative and the executive. Approximately 100 people crowded into the Supreme Court courtroom. More than 300 people viewed the argument on the court’s live-stream video portal. An estimated hundreds more watched on ETV’s live video feed.
The basic legal question before the justices was whether an attorney general, having recused himself from an ongoing criminal investigation because of a conflict of interest, can jump back into that investigation and fire his supposedly independent special prosecutor.
Politically, the major question is whether Wilson, in trying to fire Pascoe, is trying to protect certain lawmakers in the General Assembly. Wilson denies that allegation.
Although the basic question is simple, the matter has numerous complex legal issues the justices must sort through.
The case’s difficulty was underscored by Pleicones.
As Pleicones – noted for a dry sense of humor – wound up the hearing, he jokingly told the lawyers, “I appreciate you presenting us with this easy decision.”
University of South Carolina School of Law business and ethics professor emeritus John Freeman, who watched the hearing live-streamed, was impressed by the judges’ numerous focused questions. “You saw the court at its best.”
Watching Pascoe go up against Wilson’s private lawyer, Mitch Brown of Nelson Mullins, “was like watching David and Goliath,” Freeman said. “Brown is one of the foremost appellate lawyers in South Carolina. That tells me Wilson is pulling out all the stops to get a top appellate lawyer at the biggest, most powerful law firm in the state.”
“But here’s Pascoe, this guy from Orangeburg, who has this job as special prosecutor, and he’s representing himself, and you’ve got the attorney general, with his staff of 80, and then the biggest law firm in South Carolina, lined up against him. But Pascoe was splendid. He had better arguments.”
If Wilson succeeds in firing Pascoe, that will delay the investigation, Freeman said. A complex case just can’t be transferred to a new prosecutor, who already has his own workload, staffing situations and the like, Freeman said. “It takes a tremendous amount of start-up time.”
Jay Bender, the Columbia lawyer whom The State newspaper hired two months ago to urge the court to hold open hearings in this case, watched the hearing in the courtroom.
Since the matter involves an investigation into public corruption in the Legislature, the public needs to know the investigation is being carried out fairly and without interference, Bender said.
“If you have a process that doesn’t function, the public will always be suspicious that somebody’s being protected,” Bender said. “The fact this argument was public and open should give all South Carolinians confidence.”
Bender said it’s quite possible Pascoe and Keel are looking into something major because Pascoe has had so many roadblocks thrown in his way. “This seems to be an awful lot of firepower being applied to what doesn’t seem to me to be very significant evidence of public corruption. There’s something else out there.”
John Crangle, S.C. Common Cause executive director, who also was in the courtroom, predicted the court will find for Pascoe.
Pascoe’s comment to the justices that Wilson might fire Johnson if Johnson doesn’t do his bidding on some unspecified action goes to the heart of the matter, Crangle said.
“Are you going to go through a succession of special prosecutors until he gets a whitewash?” Crangle said. “I think it’s a slam dunk for Pascoe.”