TRUMP HATERS are delighted, and fans aghast, over the prospect of special prosecutor Robert Mueller going beyond contact between the Russians and Donald Trump’s presidential campaign and looking into, say, the president’s business dealings, and who knows what else.
Two decades ago, Clinton haters were delighted, and fans aghast, when special prosecutor Ken Starr left the confines of an Arkansas real estate deal and started asking questions about the president’s sexual contact with a White House intern, and his truthfulness or lack thereof about it.
In both cases, there were clear laws in place that outlined how special prosecutors could conduct their investigations, and clear rules in place for removing them from office for a number of reasons, and yet critics were convinced that they overstepped or would overstep their bounds.
What, then, of South Carolina’s special prosecutor?
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Solicitor David Pascoe is a prosecutor by his own right, but his jurisdiction would not normally extend to a legislative corruption investigation.
The Orangeburg prosecutor is not acting under control of the attorney general, as has always been the case when a prosecution was handled by someone other than the attorney general or the local solicitor.
He is not acting under any statutory law, as there is no state law that spells out what happens when someone other than the attorney general empowers a special prosecutor.
Attorney General Alan Wilson did appoint Mr. Pascoe to take over the investigations of Reps. Rick Quinn and Jim Merrill, but when he tried to rescind that appointment, the state Supreme Court refused to let him.
As a result, Mr. Pascoe is acting under authorization of the state Supreme Court. And under the jurisdiction of … well, that’s not clear.
So who would remove him if he needed to be removed? Or rein him in if he needed to be reined in?
For the record, I’m not aware of anything that Mr. Pascoe has done that would warrant his removal.
But Sen. John Courson, in his latest attempt to have corruption charges against him thrown out, alleges that Mr. Pascoe did not have jurisdiction even to investigate him, much less to bring charges.
Even more audacious is his argument that Mr. Pascoe doesn’t have jurisdiction to bring charges against anyone — that the Supreme Court merely gave him the authority to investigate Reps. Quinn and Merrill, not to prosecute them.
I can’t imagine this motion helping Sen. Courson more than briefly, because even if the court ruled for him, it would be politically (and morally) impossible for Mr. Wilson not to pursue the case himself.
Still, it’s a fascinating argument. It’s an argument that, were it to succeed, could bring Mr. Pascoe’s investigation to a screeching halt. I realize that I said that about Mr. Courson’s previous motion to dismiss the charges, but I also said that previous one was the longest of long shots.
I’ll also be surprised if the latest effort succeeds, if only because the state Supreme Court seems very interested in seeing that the investigation runs its course. But while the “investigate but not prosecute” argument looks a little stretchy, the idea that Mr. Pascoe was only authorized to investigate Reps. Merrill and Quinn is … well, that’s actually quite respectable.
Whatever the outcome, it should clear up those questions about the rules for a court-ordered special prosecutor.
Mr. Courson’s argument is this: When Mr. Wilson’s office asked Mr. Pascoe to investigate matters that grew out of the corruption case against former Speaker Bobby Harrell, it limited that handoff to the two House members (Reps. Quinn and Merrill) who were named in the SLED report about Mr. Harrell.
Repeatedly, correspondence from the attorney general’s office made the point that both the office and Mr. Wilson himself had retained jurisdiction of any other matters that could arise from the original Harrell investigation.
That wouldn’t be particularly compelling evidence by itself — the court, after all, countermanded Mr. Wilson’s attempt to remove Mr. Pascoe with its own authorization of Mr. Pascoe — but for this: The Supreme Court order also limited his jurisdiction to those two House members.
In fact, Mr. Courson’s motion argues that all Mr. Pascoe himself asked for in his petition to the court was to retain jurisdiction over the case involving those two House members.
This next point isn’t directly on point, but it’s worth noting that the controversial 2014 incident that was recently in the news — the one where Mr. Wilson asked his political consultant to look over a letter he was writing to Mr. Pascoe — ended with Mr. Pascoe acknowledging that if Mr. Harrell provided any dirt on any additional legislators, Mr. Wilson would be the one with jurisdiction.
The great thing about the Courson motion is that, whatever the outcome, it should clear up those questions about the rules for a court-ordered special prosecutor.
Of course the better way to clear up those questions would be for the Legislature to write some law to spell out how or whether special prosecutors should operate outside the jurisdiction of the attorney general. Because we really don’t need courts writing laws — or supervising prosecutors.
Ms. Scoppe writes editorials and columns for The State. Reach her at email@example.com or (803) 771-8571 or follow her on Twitter or like her on Facebook @CindiScoppe.