Cindi Ross Scoppe

Scoppe: That was the easy part; the tough question will linger

TWO THINGS have seemed clear to me for some time about Gov. Mark Sanford's use of state planes and campaign funds: His actions don't meet what I consider a very high bar needed to justify impeachment, and some of them do merit civil penalties from the State Ethics Commission.

The Legislature seems well on its way to agreeing on the former, for which we all should be grateful, as that will make it at least theoretically possible for lawmakers to turn their attention to the deep and lingering problems that plague our state. And it seems hard to imagine that the Ethics Commission wouldn't follow through on the latter when it takes up 37 charges against the governor next month.

But there remains a third question for which I have no clear answer: Should the governor be criminally charged for his personal use of state resources?

This is to me the most troubling possibility. An elected official can survive an Ethics Commission rebuke. Impeachment and removal puts an end to the matter once and for all, by getting the problem official out of office.

Criminal prosecution is different. Prosecution - and even the threat of it - would leave our state in an awkward legal and political limbo, perhaps for the remainder of Mr. Sanford's term. But that doesn't mean it shouldn't be pursued.

For months, I had dismissed this possibility of prosecution as an absurd fancy of too-excitable critics; even after I got a first look at the ethics charges against Mr. Sanford, I glommed onto the pronouncements of legislative critics, who said they weren't that serious.

Then I started slogging through the 1,359-page Ethics Commission report, and talking to people who think seriously about the principles involved in such matters, as opposed to fixating on the politics and personalities, and trying to figure out just what should to think about all this.

I find analogies helpful in sorting through complex issues, and my first instinct was to compare the charges against the governor to a traffic ticket: If someone in a high-profile position gets stopped for speeding, he needs to be adequately prosecuted, because to do otherwise is to send a message to the public that the law doesn't matter. But that doesn't mean he needs to go to prison, or to be removed from office.

I quickly abandoned that approach, though, because the charges are not the equivalent of traffic tickets. To be sure, they're not Rod Blagojevich-style corruption charges - and likely not corruption at all, at least not if you think of corruption as intentionally trying to profit illegally from office. But they are serious.

As hard as I tried, I couldn't shake the feeling that these charges had changed the political and legal landscape. Dramatically.

It's one thing to say, as I have repeatedly, that the governor almost certainly violated the ethics law in his use of state aircraft and campaign funds and the purchase of airline tickets. It's quite another to have an official body of the state charge him with 37 counts of doing just that, to try to dispassionately analyze what happens next - and to realize that criminal prosecution cannot be dismissed out of hand. There's something chilling about realizing that the governor of your state has done things that could easily justify multiple criminal charges - that almost certainly would justify them if it were anyone other than the governor - and could even legitimately be the basis of a misconduct in office charge.

Although it is pretty clear that several of the charges involving the use of state aircraft are appropriate for criminal prosecution, it is by no means clear that Mr. Sanford should face criminal charges. That might sound like a contradiction, but it's not.

Prosecutors have a great deal of discretion over which cases to pursue and which not to pursue, as they should, and the argument could be made that prosecuting a governor on criminal charges should be nearly as rare as impeaching one. That is, you shouldn't go after a governor unless the crimes are deadly serious - clear-cut corruption, for instance, as opposed to the comparatively minor charge of misuse of state resources - and there is virtually no doubt that he will be convicted.

But as one legal expert who is likewise struggling to figure out what to think about all this put it: "There could be a point where you just can't look the other way. At some point, you have to say are these violations so clear cut that there has to be some sanction here?"

The fact that it's the governor makes it harder to justify prosecution, because a prosecutor should consider how the prosecution of an individual affects the larger life of the state. At the same time, the fact that it's the governor makes it harder to justify not prosecuting, which sends a message that what looks like pretty clear violations of state law don't really matter; the idea that there would be no criminal repercussions for misusing state resources would strike all but the fiercest Sanford loyalists as a miscarriage of justice.

It's a good thing that impeachment seems to be off the table, that the Legislature seems prepared to officially condemn the governor and that the Ethics Commission will go forward with the civil charges against him.

But even assuming the case is air-tight (which is not necessarily the case), there's no right answer on this most unsettling question. Prosecuting Mr. Sanford could do grave harm to our state in the short term; not prosecuting him would send a message that flouting the law is acceptable. (I don't envy Attorney General Henry McMaster having to decide whether to prosecute. The absence of a right answer bolsters my belief that he should hand this off to someone else, to remove any question about whether his own political ambitions influenced his decision - not that it's at all clear which decision would hurt him least.)

The unfortunate reality that our state must live with is that the only good that can come of the Mark Sanford nightmare is its conclusion, apparently 13 long months from now.

  Comments