The investigation into S.C. House Speaker Bobby Harrell’s potential misuse of campaign money will continue despite a circuit judge’s order that ongoing probes by SLED and the state grand jury be shut down immediately, state Attorney General Alan Wilson says.
As expected, he said he is appealing Circuit Judge Casey Manning’s order immediately to the state Supreme Court. And continued work is allowed during an appeal of a judge’s order, Wilson said.
“The law allows us to do that,” Wilson told a State reporter in an interview. “The grand jury can continue to do its work unless the S.C. Supreme Court orders it to cease and desist.”
The investigation involves whether Harrell has converted to his personal use hundreds of thousands of dollars in campaign donations.
Later Tuesday, an email from Wilson’s office to The State newspaper underscored his determination to defy the judge’s order to halt the work of the State Law Enforcement Division and the state grand jury, which is working from a SLED report.
After The State asked Wilson to release his investigative file on Harrell because the judge on Monday had declared the investigation was over, Wilson fired back an email, telling The State:
“The attorney general and chief of SLED have consulted with one another and have determined that because there is an ongoing criminal investigation and an appeal of this matter, it would be inappropriate to release the SLED report at this time.”
On Monday, Manning issued an order saying that the state grand jury that had been investigating Harrell for months must stop its work immediately — even though it had not finished its probe.
Also, Manning wrote, all investigations into any ethical matters involving Harrell must stop.
Instead, Manning wrote, only the House Ethics Committee can investigate ethics violations against a sitting House member and forward them to the attorney general if it determines something criminal might be involved.
Manning’s order “is unprecedented in the annals of law,” Wilson said.
“Our office has looked at other states and we can’t find any other instances anywhere in the country where a legislative committee gets to be the gatekeeper of the criminal conduct of its own members,” Wilson said.
“Think about this — if a House member were to purchase cocaine with his campaign contributions, he has violated the ethics act. But under the judge’s order, a criminal defense attorney could make the argument that we can’t prosecute him for that because the whole matter has to be referred to the House Ethics Committee.”
Harrell’s lawyer, Bart Daniel, had this to say Tuesday when asked about Manning’s order: “I’m glad the judge followed the law.”
Harrell responded quickly.
“The attorney general’s statement today that he will defy a court order is proof that he’s just playing politics,” Harrell said in a news conference. “The attorney general hasn’t been following the law throughout this entire case. I’m not surprised that he will continue to do that.”
Harrell said that until there’s “a decision by the Supreme Court, Judge Manning’s order is the law of the land. ... The law is clear that ethics issues are supposed to go to the ethics committee for administrative purposes before they go to the attorney general’s office.”
Harrell called assertions that legislators are held to a different standard in criminal acts “absurd.”
“If there’s anything that the ethics committee sees that they believe is criminal in nature, they are required by law to refer that over to the attorney general,” he said.
But, Wilson said, the ongoing investigation into Harrell’s activities involves allegations of public misconduct — not just ethics matters.
Wilson also pointed to what he said were a number of errors in Manning’s decision. For example, he said, Manning repeatedly cited a 2013 state Supreme Court decision known as Rainey v. Haley, in which justices unanimously voided an ethics complaint against a former lawmaker for various reasons including that the complaint was civil — not criminal — in nature. In that decision, the court held that the House Ethics Committee has exclusive jurisdiction over all ethics matters.
However, Wilson said, two justices in a concurring opinion said that if the citizen’s complaint had been criminal in nature, the attorney general or criminal court — not the House Ethics Committee — also would have jurisdiction. And the three majority justices didn’t rule out allowing the courts to handle criminal ethics violations, Wilson said.
“Everything they say is strictly related to civil court,” Wilson said.
The House Ethics Committee “can’t even receive a criminal complaint,” let alone act on it, Wilson said.
The case against Harrell has nothing to do with a civil ethics complaint, Wilson said: “This case was about the attorney general, the state’s chief prosecutor, and the chief of SLED, sending the product of a 10-month SLED investigation to the grand jury, which is part of the criminal court system.”
The attorney general has not yet filed an appeal. He may wait as long as he can so he can continue to defy Manning’s order to halt his investigation and not run the risk that the Supreme Court also would order him to stop. Once Wilson files an appeal, he is under the Supreme Court’s jurisdiction.
House Ethics Chairman Kenny Bingham, R-Lexington, asked if his committee could handle Harrell’s case should it come before the body, said: “We don’t have (the) capacity to deal with criminal issues. But I never said we did not have the capacity to deal with civil matters.”
Bingham said he could not say if the committee received a complaint about Harrell. He declined to discuss if he thinks the attorney general can investigate ethics cases before they come to his committee.
Bingham said his panel can work objectively — even in a case against Harrell.
“Serving on the ethics committee is not a conflict,” he said. “We are not appointed to this position. We do not work for the speaker in this capacity. We’re elected by the body.”
Rep. David Weeks, D-Sumter, the ranking Democrat on the House Ethics Committee, was asked if the ethics committee avoided the Harrell case up to this point. “No complaint has been brought to us,” Weeks said.
Wilson said he regrets Harrell’s criticism of him.
“I have never viewed this case as being about Alan Wilson versus Bobby Harrell,” Wilson said.
“There are allegations out there that this is politically driven. For this to be politically driven, I would have had to talk a bunch of prosecutors, the chief of SLED and a bunch of career investigators into a conspiracy (against Harrell). This should not be about politics, this should be about the rule of law.”
State reporter Andrew Shain contributed.
“I was surprised at the ruling and I don’t support the ruling. ... I think this case rises to a higher level than a House or Senate ethics committee. It’s obviously moved on up.”
“Criminal investigations cannot preclude a selected class. You cannot have two levels of citizenship as far as criminal investigations and activities. And the way this is going, that’s how this looks to me. ... All citizens under the law should be treated equally. The General Assembly should not have a privileged position.”
“I don’t think the attorney general should have to wait on a referral from us to move forward. ... I don’t know that anybody should be precluded from taking a case to the state grand jury just because it initiated itself out of an ethics complaint.” Ethics committees should handle smaller, more technical ethics issues, Hutto said.
Manning’s ruling suggests all cases against legislators must go through the House and Senate ethics committees before the attorney general can investigate, Hayes said. “That’s not what the law says or that’s not our intent. That would not apply to the judiciary or the legislative branch or any constitutional (offices). ... The attorney general can and should, when the law has been broken, be able to prosecute anyone in the state. No one is above the law.”