THE S.C. SUPREME Court hears oral arguments Wednesday in a case that will decide whether the attorney general gets to keep the power the state constitution says he has.
It’s the second time in two years that the high court has been asked to emasculate the state’s prosecutor-in-chief, which is more than a little worrisome.
Read my previous columns on this dispute:
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The last time, then-House Speaker Bobby Harrell’s lawyers were arguing that the attorney general couldn’t investigate their client because somehow a law that they were mischaracterizing trumped the constitution, which vests in attorneys general the authority to direct all criminal prosecutions. The Supreme Court wisely, and easily, rejected that argument.
This time, the argument is coming from another prosecutor, who believes that his concept of legal ethics — which is a very good concept, except in those extraordinary cases where it doesn’t work — trumps state law (laws, actually, since there are at least two in play) and the state constitution.
Let’s start by stipulating that there’s something disquieting about a prosecutor recusing himself from a case to avoid the appearance of a conflict of interest and then taking the case back, as Attorney General Alan Wilson did in what Solicitor David Pascoe apparently believes should be a corruption investigation of Mr. Wilson’s friend Rep. Rick Quinn. That sort of defeats the purpose of recusal.
And it was deeply disturbing to watch Mr. Wilson call Mr. Pascoe incompetent and untrustworthy and “tainted,” use the inflammatory word “lie” to characterize Mr. Pascoe’s lawsuit challenging his unrecusal, and say that the solicitor “was not my first choice, nor my second, nor my third, nor my fourth, nor my fifth” to take over the Harrell investigation after a lower-court judge tried to shut it down.
At the same time, it was troubling to read in court documents that Mr. Pascoe attempted to “extend” a State Grand Jury investigation when in fact there was no such investigation to extend — a term that matters because “extension” vs. “initiation” controls whether he had the legal authority to use that powerful investigative tool.
SC Code Section 14-7-1630(B) says only the attorney general, jointly with the chief of SLED, may initiate a State Grand Jury investigation.
But whatever our gut feeling is about recusal, it’s just that: a gut feeling, based on laws and rules that apply to people whose duties and powers are not spelled out in the constitution. As Mr. Wilson said in an addendum filed last month with the Supreme Court, “Unlike a judge, who may be substituted for when he recuses himself, there is but one Attorney General, who wears several hats.”
Whatever we think about Mr. Wilson’s peevish behavior and Mr. Pascoe’s creative interpretation of the law — which suggests either bad faith reminiscent of some criminal defense attorneys or a disturbingly weak grasp of State Grand Jury law — it doesn’t change the law, or the constitution. Fortunately, if there’s anyone we can trust to draw a bright line between a lawyer’s conduct and the rule of law, it’s our justices, who have the option of dealing with unprofessional behavior through their lawyer-discipline powers.
SC Code Section 1-7-380 says solicitors may not sue the state.
Quite simply, the law is the law. But even if the court decides that reading the laws the way they’ve always been read produces an absurd result and, therefore, reinterprets them to mean something different, there’s still the constitution. And the constitution is not a bit ambiguous: “The Attorney General shall be the chief prosecuting officer of the State with authority to supervise the prosecution of all criminal cases in courts of record.”
The Supreme Court has said this means the attorney general can assign and unassign solicitors, overturn their prosecutorial decisions, take over their cases. The court has said it means that even if the attorney general has a conflict of interest, he still has an obligation to fulfill his duties as the state’s chief prosecuting officer. There’s not a lot of room in those rulings, or in the text of the constitution, to say that Mr. Pascoe has a right to keep prosecuting a case when Mr. Wilson says it’s no longer his case to prosecute.
Now, reasonable people can argue that the constitution gives the attorney general too much power. Reasonable people might likewise say it makes no sense to require the attorney general — and not his designee — to convene a State Grand Jury investigation, or that it makes no sense to have a law that bars a solicitor from suing the state. They might say it’s ridiculous not to have a law that says recusal means forever, even for the attorney general, and that spells out work-arounds for initiating a State Grand Jury investigation when the attorney general recuses himself. Those are all legitimate debates to have, but the place to have them is not in the Supreme Court chambers.
If the laws need changing, they need to be changed by the Legislature. If the constitution needs changing, it needs to be changed by the Legislature and the people. The job of the court, which our court does consistently, is to apply the law and the constitution as they exist, not as the justices or Mr. Pascoe or Mr. Wilson or anyone else might think they should exist.
Ms. Scoppe writes editorials and columns for The State. Reach her at firstname.lastname@example.org or follow her on Twitter @CindiScoppe.