COLUMBIA - The S.C. Supreme Court could be contemplating a decision that would essentially split the difference in the ethics-related case against House Speaker Bobby Harrell, experts said Wednesday.
The ongoing case against Harrell, R-Charleston, received a hearing Tuesday in front of the state's highest court. Lawyers and politicos alike are awaiting the much-anticipated decision. While they said it's difficult to know where the justices might head with a decision, key themes emerged in the hearing that could provide a roadmap.
At stake is whether Attorney General Alan Wilson and a state grand jury may continue an ethics-related investigation into the House speaker or whether the case must first be vetted by a panel of lawmakers - the House Ethics Committee, which typically deals with such cases. Harrell has been accused of using campaign funds for personal use and abusing his position to benefit his company, among other accusations.
More broadly, court watchers and Harrell critics worry that a decision to kill an investigation into the powerful House speaker would hamper the state's ability to police lawmakers and show dysfunction in the state's most important institutions. Supporters of the S.C. Policy Council - a small government advocacy group that has criticized Harrell and asked the attorney general to take the case - helped pack the small courtroom and fill overflow seats in the lobby.
Questions in the unprecedented case of an attorney general seeking to investigate the speaker of the House showed that the justices appeared comfortable with the fact that the attorney general has the authority to do so, said Charlie Condon, a former S.C. attorney general who watched the proceedings online. But they appeared to also believe that Circuit Judge Casey Manning could have the authority to shut down such an investigation if there was not enough evidence to go forward, he said. Manning ruled in May that the investigation should be shut down and first heard by the House Ethics Committee before moving forward. Wilson appealed that decision to the Supreme Court.
Manning is the same judge, lawyers said in court, who signed off on the use of the state grand jury in the Harrell case in the first place. Because none of the evidence against Harrell officially has been considered in the case, Condon said the Supreme Court could order the lower court to review the evidence in secret and ensure it rises to the level of public corruption, the standard for the use of a grand jury.
In that way, the court would essentially split the difference in the case - allowing the attorney general to move forward with the investigation as long as he met the burden to do so.
Condon said that when Wilson sought to discuss some of the evidence in open court in May, Manning shut him down. Evidence considered by a grand jury is considered secret until a defendant is indicted. Condon said he hopes the justices ask the lower court to consider the evidence in the case.
"I really believe the attorney general didn't put in the evidence he has because of the direction of the trial court," Condon said.
The court's decision is perilous, Condon said, because it could set up a way for targets of a grand jury to challenge an investigation - something that could hamper prosecutors' ability to deliver indictments.
John Crangle, an attorney and director of the advocacy group Common Cause, said it's difficult to know what the justices might do. Regardless, he does not expect the legal wrangling to end; the courts have not ruled on whether Wilson has a conflict of interest in the case, the reason Harrell took it to court in the first place.
He also questioned whether Wilson, if the decision goes against him, could pursue the case through a county-level grand jury or by other means.
As for the courts, Crangle said it's possible the justices would allow Wilson to move forward as long as there's enough evidence to warrant it. He predicted more legal wrangling "and God knows how much it costs the taxpayers to do that," he said. "It's a very inefficient process."
Reach Jeremy Borden at 708-5837.