Lawyers for S.C. House Speaker Bobby Harrell are secretly trying to get a state judge to remove state Attorney General Alan Wilson as the prosecutor in ongoing State Grand Jury proceedings against Harrell, according to sources close to law enforcement who are familiar with situation.
Harrell’s lawyers, who include attorneys Gedney Howe and Bart Daniel, both of Charleston, are seeking a closed-door hearing before Judge Robert Hood of Columbia to try to convince Hood to secretly remove Wilson, the sources said.
A secret decision by a lone judge in a hearing closed to the public that resulted in disqualifying South Carolina’s top elected prosecutor from prosecuting a high-profile case against one of the state’s most powerful politicians would be unprecedented.
The State Grand Jury is investigating Harrell for possible misuse of campaign contributions and possible misuse of his legislative position. He insists he has done nothing wrong. Wilson referred the matter to the State Grand Jury in January.
Wilson, in his fourth year as state attorney general, has made prosecuting public corruption cases a priority. Last year, Wilson asked the State Law Enforcement Division to investigate a complaint made against Harrell. In January, Wilson’s move to turn a SLED report containing allegations of possible wrongdoing by Harrell over to the grand jury surprised Harrell, who thought there would be no grand jury investigation.
The State newspaper could not learn why Harrell’s lawyers are trying to disqualify Wilson.
If Harrell’s lawyers could get Wilson removed from the current investigation, it might result in a prosecutor who would go easier on Harrell and make sure no charges were brought against him, said Common Cause of South Carolina head John Crangle.
“Who would replace Wilson? Would you get a Republican solicitor to come in and maybe softball the whole thing?” said John Crangle, head of Common Cause of South Carolina.
Wilson’s office, after queries from The State newspaper about whether he agreed with Harrell’s lawyers that he should be disqualified, issued a statement late Wednesday.
“The Attorney General’s Office is strongly opposing both the request for a closed hearing and any disqualification of the attorney general,” Wilson’s statement said.
Harrell, also in response to queries by The State, released this statement: “I have stated several times that I would like this to be a transparent process that is open to the public, and have also asked for the SLED report to be released numerous times. The decision of what can be open to the public is not up to me, otherwise the public would have read SLED’s full report months ago. The real story here is whether or not someone is leaking information about a grand jury in violation of the law.”
In referring to the SLED report, Harrell is referring to the investigative document that in January was turned over to the State Grand Jury to see if criminal charges should be brought in the form of an indictment. Harrell has argued the report should be made public.
State Grand Jury proceedings are secret under S.C. law. But a question of who prosecutes the case is not part of the investigation and would be heard and ruled upon by a judge alone, not the grand jury, legal authorities said Wednesday.
Thus it is clear – by law and by precedent – that such a hearing therefore should be open to the public, they said.
Hood, a second-year judge based in Columbia and currently the 5th Circuit’s chief administrative judge, has not replied to emails from The State requesting that he reveal the time, place and status of the hearing.
The S.C. Supreme Court has a long tradition of keeping courts open, veteran open records lawyer Jay Bender said Wednesday.
“There has never been a closed court decision that has been challenged that was upheld by the Supreme Court,” said Bender, who is The State newspaper’s attorney.
Moreover, both the U.S. Constitution and the S.C. Constitution mandate open courts, Bender said. The S.C. Constitution specifically says, “All courts shall be public.”
Bender also cited a 2006 landmark S.C. Supreme Court decision, Hearst-Argyle v. Williams, in which a unanimous court noted that exclusion of press and public from a court proceeding is “a drastic action” and a judge must make specific findings as to why he is closing a court proceeding.
Crangle, a lawyer, also said the hearing on disqualifying the prosecutor has nothing to do with the grand jury investigation and should be open.
In 2002, both then-Attorney General Charlie Condon and former 5th Circuit Solicitor Barney Giese answered in detail reporters’ questions involving Condon’s alleged conflicts of interest after Giese filed a formal request for a State Grand Jury investigation into an election fraud matter. At the time, The State newspaper published the substance of the motion filed before the presiding judge in that case, Henry Floyd.
Harrell defense lawyers Howe and Daniel each declined to discuss the matter.
“It’s a secret process by law,” Daniel said Wednesday. “We are going to follow the law and play by the rules, so I wouldn’t have a comment on anything involving the grand jury.”
In January, when Wilson turned the results of the lengthy SLED investigation over to Harrell, Harrell said he was “shocked" by the move.
Harrell portrayed the move as a kind of betrayal, saying that up until then, he had been told the grand jury wouldn’t get his case.
“This decision contradicts every indication that SLED and the Attorney General’s Office have given us on the progress of this investigation," Harrell wrote in an email to The State then.
Wilson had asked SLED to investigate Harrell after Ashley Landess, president of the S.C. Policy Council, a limited-government think tank, wrote a letter to the attorney general. The letter raised questions about the legality of Harrell reimbursing himself about $300,000 from his campaign account to fly his private plane on state business. The letter also alleged Harrell may have misused his position as speaker to benefit himself and his business.
The State Grand Jury has subpoena and investigative powers that go beyond evidence that is presented to it. Empanelling a State Grand Jury requires the approval of the attorney general, the head of SLED and a circuit court judge.
Harrell said in January, “I call on the attorney general to immediately release the entire SLED report to the public. This report contains the facts of this matter, facts that have been kept from the public and even kept from my attorneys and me.”
Wilson himself has had campaign contribution irregularities.
Last May, Wilson filed amended campaign disclosure reports after an independent accountant found his campaign had failed to report 68 donations worth nearly $66,890.
The campaign also said it discovered unreported payments totaling $66,797 to 16 vendors – much of which went to a pair of firms that handled television production and consulting.
Wilson did not face penalties for failing to report the contributions and expenses since he self-reported the errors and re-filed his campaign reports, the director of the S.C. Ethics Commission has said.
The unreported donations were discovered after Wilson said he had returned $7,000 in contributions tied to Harrell.
Half of the contributions came from Harrell’s campaign for Wilson’s inaugural ball. That $3,500 was listed on Harrell’s disclosure form but not on Wilson’s.
Wilson returned the $7,000, which included another $3,500 contribution from a political-action committee tied to the speaker, after the first-term Republican attorney general referred ethics complaints against Harrell to SLED last year.