Cindi Ross Scoppe

Scoppe: In Pascoe v. Wilson, the law seems to be on Wilson’s side

SC Attorney General Alan Wilson surrounded himself with flags and former attorneys general (all of the living ones) on Wednesday to defend his decision to remove Solicitor David Pascoe from a legislative corruption investigation.
SC Attorney General Alan Wilson surrounded himself with flags and former attorneys general (all of the living ones) on Wednesday to defend his decision to remove Solicitor David Pascoe from a legislative corruption investigation. tdominick@thestate.com

ALAN WILSON is making it very difficult for people to dismiss Solicitor David Pascoe’s narrative that the attorney general is trying to block a corruption investigation of his friends in the Legislature. But contrary to what you’d think from Mr. Wilson’s peevish, combative and at times unfocused news conference, he appears to have the law on his side.

It’s important to understand why, because the integrity of our criminal justice system is at stake.

There are three major issues here: Did Mr. Pascoe have the legal authority to initiate a State Grand Jury investigation, or did he need Mr. Wilson’s authorization? Did Mr. Wilson have the legal authority to remove Mr. Pascoe from the case? And was Mr. Wilson justified in removing Mr. Pascoe? That last question is entirely different from whether it was legal.

A.G. sign-off required

The first is straightforward: After a State Grand Jury investigation is initiated, the law indeed empowers either the attorney general or his designee to take all sorts of actions — and Mr. Pascoe cited many of them in his petition asking the Supreme Court to let him move forward. But in order to initiate an investigation, the attorney general and the chief of SLED must sign the request; there is no provision for a substitute in either case.

This is no small matter, and it was no accident: The Legislature was reluctant to create the State Grand Jury, which has invasive investigative powers that county grand juries and police departments do not have. A big selling point to lawmakers was that the attorney general would have to be personally responsible for every investigation — not one of his deputies, not one of the circuit solicitors, but the attorney general.

Perhaps the law should empower someone else to sign the request when, as in this case, the attorney general has recused himself. But that’s not the law. So Mr. Pascoe was wrong when he attempted to initiate an investigation under his own signature. I cannot explain how SLED Chief Mark Keel and Circuit Judge Clifton Newman signed off on this, although we do tend to believe that people who act like they have authority actually have it. Perhaps they and Mr. Pascoe didn’t bother checking the law and merely assumed that when Mr. Wilson gave the case to Mr. Pascoe, he also was able to give him that authority.

Recusal v. constitution

The question of whether Mr. Wilson can have any involvement in a case where he has recused himself is trickier, because no statute directly addresses it. But the state constitution gives the attorney general complete control over solicitors, and our state Supreme Court has said the attorney general can exercise his constitutional authority even when he has a conflict of interest.

And recusal is a voluntary thing, left entirely to the discretion of the prosecutor. In fact, when judges recuse themselves, it’s not uncommon for them to later unrecuse themselves.

State law allows a judge to remove the attorney general from a State Grand Jury investigation if the judge finds “an actual conflict of interest resulting in actual prejudice against the moving party.” But even then, it is the attorney general — not the judge — who selects the prosecutor to take over the case.

So, since the law does not require the attorney general to recuse himself, and since the law allows an attorney general who has been disqualified to name his own replacement, it stands to reason that an attorney general who voluntarily steps aside for appearance sake retains the power to change his mind about who should prosecute. Again, this might not be how the law ought to work, but it seems to be how it does work.

“I’ve recused myself from making a decision on this case,” Mr. Wilson said Wednesday, “but if the prosecutor starts doing something wrong, then I’ve got to find another prosecutor to take the case.”

Judgment call

To me the most difficult question is whether Mr. Wilson was justified in removing Mr. Pascoe, because it’s entirely about judgment, not law. And this is where Mr. Wilson has done the worst job of making his case, at least in part because he framed it in terms of leaks to the media.

When I challenged him on this, he admitted that prosecutors routinely have off-the-record conversations with journalists; you might recall that he was called out for his own leaks during the Bobby Harrell investigation that birthed this current investigation. Eventually, he got to what I believe is a legitimate concern: the petition Mr. Pascoe filed on Good Friday asking the Supreme Court to make the grand jury clerk swear him in and issue subpoenas.

Mr. Wilson said that when he learned that Mr. Pascoe had attempted to launch a State Grand Jury investigation, he tried to contact him and sign the documents “to fix his mistake” and make the investigation “legal and lawful.” But the petition changed everything.

The petition, he said, was filled with “half-truths, misinformation and at least one outright lie” — the latter apparently being Mr. Pascoe’s claim that Mr. Wilson’s office instructed the grand jury clerk to impede his investigation. The clerk denied that during Mr. Wilson’s news conference, and Mr. Pascoe’s supporting exhibit didn’t actually support it.

“I believe that petition was manufactured solely for media consumption, to be a story document that a reporter would write about,” Mr. Wilson said.

Mr. Wilson says defense attorneys would be able to use that petition to undermine Mr. Pascoe’s entire investigation, by arguing that if the solicitor would resort to such deceptive tactics to discredit the attorney general, he could not be trusted to be honest in prosecuting their clients. That is what he means when he calls Mr. Pascoe “tainted.” In his mind, he had to remove Mr. Pascoe — not to stymie the investigation but to salvage it.

I’m not certain that was necessary, but I believe that he believed it was.

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

  Comments