COLUMBIA - South Carolina's attorney general is free to investigate House Speaker Bobby Harrell, the S.C. Supreme Court ruled unanimously on Wednesday, overturning a lower court's decision and turning their fight into a seesaw battle that is expected to continue.
January 2014: Just prior to the start of the 2014 Legislative session, Attorney General Alan Wilson announces he is turning over a 10-month State Law Enforcement Division report into House Speaker Bobby Harrell's dealings to a state grand jury.
The move comes after The Post and Courier in September 2012 publishes a report detailing how Harrell, R-Charleston, reimbursed himself hundreds of thousands of dollars from his campaign account since 2008, much of it for flights on his private plane. The S.C. Policy Council, a pro-limited government think tank, has also raised questions about Harrell seeking special treatment in relation to his drug-repackaging company.
Harrell calls the grand jury announcement a "blatant smear campaign" meant to embarrass him. "The facts still are that I have not broken the law," Harrell said.
March 2014: In the first of several court appearances, Harrell and his legal team argue in front of Richland County Circuit Judge Casey Manning over whether Wilson improperly threatened Harrell through an intermediary as the state's top prosecutor dealt with the ethics probe into the speaker, setting the tone for a heightened level of acrimony.
May 2014: In a much-anticipated decision, Manning rules that allegations against Harrell must first be heard by the House Ethics Committee and cannot be pursued by a state grand jury. Manning called the use of the state grand jury "premature" because the House ethics panel had not yet heard the case.
Wilson appeals, saying as top prosecutor, he has the right to follow a probe wherever it leads and at any time. He vows to continue the investigation despite the judge's order saying he cannot use the state grand jury or other investigative agency to do so. The Supreme Court agrees, and also says that it will hear the appeal.
June 24, 2014: S.C. Supreme Court justices grill attorneys in the fight between Harrell and Wilson.
Justices want to know why prosecutors had failed to present clear evidence of criminal wrongdoing that would rise to the level of public corruption - the standard for asking the state grand jury to investigate such a case.
The attorney general's office replies that criminal grand juries mark the start, not the end, of any investigation.
July 9, 2014: The S.C. Supreme Court overrules Manning and affirms Wilson's authority to investigate. They return the case to Manning to decide whether Wilson should be disqualified in connection to Harrell's allegation of intimidation.
In a 13-page ruling, the justices said Attorney General Alan Wilson is fully empowered to investigate wrongdoing wherever it may occur and that his powers are not blunted because the investigation involves a lawmaker's ethical conduct.
The state's top prosecutor possesses "wide latitude in selecting what cases to prosecute and what cases to plea bargain," they wrote as they recognized that the attorney general's authority to prosecute "derives from our state constitution and thus cannot be impaired by legislation."
Harrell, a Charleston Republican, has faced allegations that he used campaign funds for personal use and his position for personal benefit. He has not been charged with any crimes.
But Harrell and his attorneys had argued that any probe into such matters belonged with the House Ethics Committee, where such matters are usually settled. The grand jury probe should be halted, they have said, until that House panel can vet the allegations.
Wilson contends the law gives him the right to investigate Harrell and to convene the state grand jury as part of the investigation.
A May ruling by Circuit Judge Casey Manning was flawed, the justices wrote, because he failed to consider the law enforcement role of the attorney general's office.
They compared the House Ethics Committee's authority to a professional body that oversees its members.
"For example, a doctor is subject to oversight by the South Carolina Board of Medical Examiners (the Board) and may have his or her medical license rescinded in disciplinary proceedings, while simultaneously being the focus of a criminal investigation and prosecution, all for the same behavior," the justices wrote.
Harrell critics and others praised the decision. Former Attorney General Charlie Condon said the ruling is not so much about the Harrell-Wilson fight, but a clear support for the rule of law.
Manning's decision, he said, had the effect of setting up two sets of standards in terms of investigative paths, "one for the General Assembly, and one for the rest of us. ... The court unanimously rebuked that," he said, adding that the decision has the effect of reaffirming the attorney general's role as chief prosecutor in every court in the state.
In a statement, Harrell noted that the issue about whether the attorney general had the authority to take on the case was brought up by Manning. Harrell's attorney had asked the circuit court to remove Wilson from the case, arguing he has a conflict of interest. Harrell said he was "disappointed" with the decision, but said the court was right to sharply question a deputy attorney general arguing the case on June 24.
"As Supreme Court Justices clearly pointed out at the hearing, the Attorney General has improperly handled this case from the beginning. ... As the Circuit Court ruling stated, after more than a year of investigations, the Attorney General was still pursuing this case even though he could not point to a single shred of evidence of criminal wrongdoing. Clearly the Attorney General's motivations have been corrupted by political motives and that is why he needs to be replaced with a fair and impartial prosecutor."
Mark Powell, a spokesman for Wilson's office, declined to comment.
The justices asked Manning to decide whether Wilson has a conflict of interest in the case. While a March hearing on the issue was held in public, a footnote in the opinion says that all future hearings should be held behind closed doors because the court is ruling on matters involving the secretive grand jury.
Ashley Landess, president of the small government advocacy group S.C. Policy Council, largely praised the decision. The Policy Council has been Harrell's chief critic, and had pushed Wilson to take the case, saying the House speaker should not be investigated by his colleagues. "It's a huge relief that the court restored the rule of law," Landess said.
She disagreed with the court's decision that future hearings be held behind closed doors. "There is a real danger in allowing that to happen in secret considering the already disturbing nature of this process so far," she said.
Jay Bender, an attorney for The Post and Courier and other media organizations, said that there is likely little the media or other public advocates can do to gain access to the hearing. "That's the history of it, grand juries operate in secret," he said.
Manning is now expected to decide in the near future whether Wilson has a conflict of interest in the case. During a March hearing, both sides laid out their arguments. Just two witnesses testified: Harrell chief of staff Brad Wright and Wilson. Wright said that Wilson wanted him to convey a threat to the speaker during a one-on-one meeting with the attorney general over a piece of legislation.
Wilson denied that he had sought to threaten Harrell.
Reach Jeremy Borden at 708-5837.
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