Judge to AG Wilson: Stop SLED and grand jury probe of House Speaker Harrell

jmonk@thestate.comMay 12, 2014 

— Circuit Judge Casey Manning ruled Monday that Attorney General Alan Wilson and SLED must stop their ongoing state grand jury criminal investigation of possible ethics violations by House Speaker Bobby Harrell.

Manning, in a five-page order, ruled that any action taken by Wilson’s grand jury to date “is null and void.” The grand jury has been operating since around January.

Moreover, Manning also effectively disbanded the state grand jury that had been investigating Harrell and revoked a previous court order that had brought that body into being. He also ordered the state grand jury as well as any other investigative agency not to take “any further investigative action” concerning Harrell’s alleged ethics violations.

The case must first be handled in the S.C. House of Representatives, Manning said, and any action by the attorney general at this time is “premature.”

Confirmation of Manning’s ruling – awaited in state political and legal circles — came around 5:30 p.m. Monday in a statement issued to the media by Wilson’s office.

“We believe today’s order of Judge Manning is without any foundation or support in the law. This office will vigorously pursue all appellate remedies and will seek to continue this investigation,” Wilson’s statement read — hinting at a likely quick appeal of Manning’s order to the S.C. Supreme Court. Manning’s sweeping ruling effectively protects Harrell, 58, a Republican from Charleston, from any criminal investigation by Wilson and SLED — at least for the foreseeable future.

Wilson is the state’s top prosecutor, and SLED is the state’s leading criminal investigative agency. Harrell, a veteran lawmaker, has been speaker since 2005 and a House member since 1992.

Manning’s decision is a rare and possibly historic clash of powerful state figures. Not within memory has a South Carolina judge shut down an active criminal probe of a powerful state official by a state attorney general and a state grand jury investigation.

It was also unusual in that, while Manning had prepared his ruling earlier, he apparently did not authorize the state grand jury clerk of court, Jim Parks, to release the decision until after 6 p.m. Monday — well past normal business hours. Monday night, after Manning’s order was released to the media, Harrell issued a statement accusing Wilson of political motives and saying he agreed with Manning: “We are pleased with the court’s ruling.”

Last month, Wilson had argued in open court that if Manning issued an order halting his investigation, the judge would be granting a kind of immunity to certain criminal prosecutions not enjoyed by any other South Carolinian.

Last month at the hearing, Wilson indicated to Manning the ongoing SLED and grand jury investigation had uncovered other potentially criminal matters. But Manning said in his Monday order that Wilson had offered him no “evidence or allegations which are criminal in nature.”

However, former attorney general Charlie Condon said late Monday, “I was shocked the judge could say that. I was there.”

Condon said during the hearing Wilson quite clearly told Manning the SLED investigation had uncovered potential criminal matters that did not include ethics violations.

In his decision, Manning made it clear he agreed with arguments made by Harrell’s lawyers in court last month that under state law, reports of any potential ethics violations first must go to the 10-member House Ethics Committee for a determination.

At that hearing, Harrell lawyer Bart Daniel argued that under a 2013 state Supreme Court ruling known as Rainey v. Haley, any complaints involving alleged ethics violations by any of the state’s 124 House lawmakers must first go to the House Ethics Committee.

The ruling upheld a state law, passed by the Legislature, giving the Legislature’s own members “exclusive jurisdiction” over any ethics matters involving state lawmakers.

In his Monday ruling, Manning repeatedly cited Rainey, saying that decision “clearly establishes that ethics investigations concerning members and staff of the Legislature are solely within the Legislature’s purview to the exclusion of the courts.”

The Ethics Committee — not Wilson, the courts or the state grand jury — has “exclusive authority to hear ethics violations,” Manning wrote.

Manning wrote that perhaps in the future, if the Ethics Committee referred ethics violations to the attorney general, the attorney general could then — and only then — begin a criminal investigation of Harrell.

But at this point, “Any investigation by the state grand jury at this stage is illegitimate because the (Ethics) Act’s administrative remedies have not been exhausted,” Manning wrote.

Manning’s decision was a defeat for SLED chief Mark Keel.

Earlier this year, Keel had joined Wilson in requesting — and launching — a state grand jury investigation into Harrell’s possible criminal misuse of hundreds of thousands of dollars in campaign funds. Specifically, Harrell has been accused of converting large sums of campaign funds for his personal use. A state judge signed off on their request.

Last year, Keel’s investigators worked 10 months to prepare a lengthy report that formed a starting point of the grand jury investigation he and Wilson launched in January.

In agreeing with Harrell’s lawyers, Manning disagreed with Wilson’s argument that the state Constitution should have greater weight than the state ethics law . Manning said a separate provision in the Constitution, mandating separation of powers among the three branches of government, gives the Legislature full authority over ethics investigations.

Whatever the law, there’s a big difference between a House Ethics Committee review and a state grand jury investigation.

The Ethics Committee is a relatively toothless body of five Republicans and five Democrats that hears civil ethics matters. It has no squad of trained criminal investigators or veteran prosecutors. Its 10 members are made up of friends and colleagues of Harrell. Only after a potentially lengthy process to vet ethics violations does the House Ethics Committee have the authority to refer possible criminal violations to the attorney general.

On the other hand, a state grand jury’s findings are potentially criminal in nature and can result in indictments that can force a person to stand trial and be subject to heavy fines or prison. A state grand jury also has clear subpoena powers, trained criminal prosecutors and investigators.

Manning’s decision also cited a 1994 State Supreme Court opinion, State v. Thrift, in which the high court held that legislative ethics act violations are civil, not criminal.

Reach Monk at (803) 771-8344.

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