In a face-off with historic implications, three of the most powerful branches of government are set to argue for 50 minutes Tuesday before the state Supreme Court in Columbia, with each side ready to spar over who is correctly interpreting South Carolina's ethics laws.
In one corner, lawyers for House Speaker Bobby Harrell will argue the veteran Charleston Republican has done nothing wrong, denying allegations that have dogged him for two years regarding misuse of campaign funds and using his office for personal gain.
And even if he had, they contend, state law says his conduct should first be judged by his peers in the Legislature via the House Ethics Committee, rather than by a full-blown criminal investigation.
That's not how Attorney General Alan Wilson sees it. The Midlands Republican, who was elected as the state's top prosecutor in 2010, contends that any criminal investigation should not be hamstrung by where or with whom it originates, making Harrell a clear subject for the state grand jury.
For its part, the S.C. Supreme Court will be asked to determine if a lower court judge ruled correctly in determining that the House Ethics Committee must first investigate any ethics complaint before the attorney general can step in.
While no decision is expected Tuesday, legal watchdogs from outside the state say the colliding positions further expose another element of South Carolina's archaic political system, where members of the General Assembly have secured the right to monitor themselves.
At its core "it has every indication of being protective of incumbent legislators," said Craig Holman, government affairs lobbyist for Public Citizen, a watchdog group based in Washington, D.C.
Holman said that purely in the name of investigative procedure he would side with Wilson, saying South Carolina's Legislature seems to be running backward in the investigatory process when it comes to possible criminal acts.
"You go with the more serious investigation first, and the less serious potential violations" can be addressed later, he said.
Another apparent built-in weakness, Holman said, is relying on elected state lawmakers to conduct a thorough investigation of a peer - something they might not be adequately trained to do. This, Holman said, "can really mess up a criminal investigation."
What will be heard
Harrell has been accused of using his campaign funds for personal use and abusing his position to benefit his pharmaceutical company, among other allegations raised in reports by The Post and Courier and by a Columbia-based libertarian group called the S.C. Policy Council. He has not been charged with any wrongdoing.
But the crux of the scheduled 2:30 p.m. hearing is Wilson's appeal of Circuit Judge Casey Manning's decision last month that the ethics-related case against Harrell could not be investigated by either Wilson or a state grand jury. Instead, the law says they need to be first vetted by the House Ethics Committee, Manning ruled.
Manning's order also put a stop to the attorney general's criminal probe of Harrell, though the Supreme Court ruled shortly after that both Wilson's effort and the grand jury investigation could continue.
Critics worry that if Harrell prevails, lawmakers would be exempt from the same scrutiny the attorney general is able to apply to anyone else.
Wilson, meanwhile, has taken the tack that no one is above the law and that he does not need the permission of the House Ethics Committee to investigate any lawmaker. "It is up to the Legislature to determine whether someone indicted or convicted of a crime should remain a member of the body, or should receive some other reprimand or discipline," Wilson said in his court brief from earlier this month. "That power in no way affects the right of the attorney general to seek a conviction," he also wrote in his brief.
On Thursday, Wilson filed court papers that expanded on his position. "A crime is a crime; Ethics Act violations can be criminal; and neither law enforcement nor the Grand Jury needs permission to investigated crime, much less the Attorney General permission to prosecute it."
Harrell's legal team, meanwhile, counters the speaker has never claimed to be above the law, only that Wilson is trying to make a criminal case out of something they contend should be pursued as a civil matter. They also contend that despite multiple requests, "the attorney general has failed to offer or present to the court any evidence or allegations which are criminal in nature."
Ethics reform dead
The final hours of the 2014 Statehouse session Thursday were highlighted by a Senate filibuster that essentially killed what would have been the first attempt at Statehouse ethics reform in 20 years. Some say passage of that reform would have helped better clarify some of the matters in the Harrell case.
While some saw the measure as too intrusive, others said it was weak. The bill did not include an independent investigative committee that Gov. Nikki Haley and others said was key to instilling trust in the process.
The House, which passed the measure on June 5, had pushed for such a committee, but the Senate - where the filibuster ran out the final minutes of the Statehouse clock - rejected it, and the compromise version did not include it.
Other elements that could have better defined lawmaker ethical parameters was the creation of a committee to study what parts of the Ethics Act should contain criminal penalties; as it stands, all violations, inadvertent or not, can be prosecuted as criminal misdemeanors.
Lawmakers won't be back in Columbia until January - after November's elections - when the process starts all over again.
Toal asked off case
In mid-February, John Crangle, executive director of the Columbia-based government watchdog group Common Cause, asked the Supreme Court to "weigh the option" of having Chief Justice Jean Toal and Associate Justice Costa Pleicones recuse themselves in any hearing connected to the Harrell case.
In Crangle's view, South Carolina's system in which the Supreme Court chief justice is elected by the Legislature - and where Harrell openly supported Toal - should force Toal to recuse herself. Pleicones had challenged Toal for the top court job, but Toal defeated him by a vote of 95-74.
Crangle last week repeated his position that the election could make the public question the outcome of Tuesday's hearing.
"He knew his case was going to end up in the Supreme Court and wanted a friend sitting there," Crangle said.
Toal issued a "no comment" last week when asked about the recusal question.
Cynthia Roldan contributed to this report.
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