Cindi Ross Scoppe

These answers could determine whether SC corruption probe survives

SC Sen John Courson, left, and Solicitor David Pascoe
SC Sen John Courson, left, and Solicitor David Pascoe cscoppe@thestate.com

SOLICITOR David Pascoe’s latest brief finally confirms the leading theory of how Sen. John Courson came to be a target of his corruption investigation:

When SLED raided the offices of Richard Quinn and Associates looking for evidence against Mr. Quinn’s son, Rep. Rick Quinn, agents seized a boatload of checks and bank records. And, Mr. Pascoe writes, “In the course of analyzing these financial records, SLED found a series of payments from Defendant’s political campaign account to RQ&A and accompanying payments from RQ&A to Defendant personally.”

Specifically, there were “13 separate occasions on which checks drawn on the John Courson for Senate campaign account were paid to RQ&A for a total of $247,829.81, and on or about the same day RQ&A wrote a check to John Courson personally for a total of $132,802.95.” That’s 54 percent of the money Mr. Courson’s campaign paid “kicked back to Courson personally.”

That bit of detail, in response to Mr. Courson’s motion to dismiss the charges against him, was part of Mr. Pascoe’s argument that the Courson investigation grew logically out of the investigation of Rep. Quinn.

Mr. Courson has argued that the solicitor had no jurisdiction to bring corruption charges against anyone besides Rep. Quinn and then-Rep. Jim Merrill. That’s because both Attorney General Alan Wilson and the Supreme Court have said Mr. Pascoe was authorized to investigate only those two legislators — Mr. Wilson, when he recused himself from investigating the two legislators, and the Supreme Court, when it said the attorney general couldn’t change his mind.

Although great for political cocktail talk, I’m not sure how Mr. Pascoe’s accounting of the derivation of the Courson investigation speaks to his authority to investigate.

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Nor am I impressed by the argument that Mr. Pascoe couldn’t turn the Courson investigation over to Mr. Wilson because “the evidence necessarily relates to the matter from which the Attorney General’s Office was recused.” That suggests that Mr. Wilson recused himself from any investigation involving the elder Mr. Quinn; perhaps he should have if there had been any evidence at the time to suggest that the elder Mr. Quinn needed to be investigated, but there was not, and Mr. Wilson did not. He only recused himself from matters concerning Reps. Quinn and Merrill.

Fortunately for everyone who believes there’s a lot more legislative corruption out there that Mr. Pascoe needs to discover, his third argument is not off topic: There was no limit to which legislators the State Grand Jury could investigate, he argues, and he was simply doing what the State Grand Jury told him to do.

That argument is completely at odds with the way grand juries operate — they are in fact tools of the prosecutor, not the other way around — but it’s easy to get that impression from reading the law. And it could very well be the answer the court needs to dismiss Mr. Courson’s motion to dismiss the charges against him.

I wish Mr. Pascoe had directly addressed the clear words in the Supreme Court order that limited his jurisdiction to the two House members, rather than referring repeatedly and dismissively to Mr. Wilson’s invocation of the limit. I assume the same argument he makes about the grand jury’s jurisdiction would apply to the court’s limitation, but he never actually said that.

It’s obvious why Mr. Courson’s motions are important to him. They’re important to us because they provide the court an opportunity to spell out the rules that govern a special prosecutor who is not operating under the control of the attorney general — something no law addresses and that we have never had before in South Carolina. The way in which Mr. Pascoe repels the “no jurisdiction” argument makes it less likely that the court will find it necessary to do that, but at the least it still has to tell us whether Mr. Pascoe does indeed have the authority to investigate any and all legislators, rather than just the two who were named in a SLED report.

Mr. Pascoe does a nice job of explaining why charging Mr. Courson with both common-law and statutory misconduct in office does not constitute double-jeopardy, as the senator had alleged. I was unconvinced that it did, and even less convinced that the common-law crime no longer exists. But if the court bought either of those arguments, it would dismember the entire corruption investigation, because only the common-law charge is serious enough to force elected officials to be suspended from office upon indictment.

There’s no double-jeopardy, Mr. Pascoe argues, because they’re entirely different crimes: Common-law misconduct requires “evil intent,” while the statutory crime requires only specific actions. This, in Mr. Pascoe’s telling, means that the common-law crime is more difficult to prosecute.

Actually, while public officials can be convicted of statutory misconduct even if they didn’t mean to break the law, they still have to commit one of a handful of delineated crimes, such as fraud, corruption and habitual negligence. Conversely, while common-law misconduct requires the defendant to act “willfully and dishonestly,” it doesn’t require the commission of an actual crime: It can mean simply not doing your job.

But even if common-law misconduct isn’t more difficult to prove than statutory misconduct, it is certainly … different. Quite different. And that, after all, is all Mr. Pascoe has to demonstrate in order to maintain the linchpin charge of not only the Courson case but the entire investigation.

Ms. Scoppe writes editorials and columns for The State. Reach her at cscoppe@thestate.com or (803) 771-8571 or follow her on Twitter or like her on Facebook @CindiScoppe.

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