Supreme Court justices questioned state prosecutors Tuesday, asking why a State Grand Jury investigation into ethics allegations against S.C. House Speaker Bobby Harrell should not be halted.
Last month, Circuit Court Judge Casey Manning ordered that probe halted. Attorney General Alan Wilson asked the Supreme Court on Tuesday to overturn Manning’s order and allow his investigation of Harrell, R-Charleston, to continue.
Manning agreed to impanel the grand jury in January after reading a petition signed by Wilson and State Law Enforcement Division chief Mark Keel, Assistant Deputy Attorney General Creighton Waters told the justices.
But, after Harrell’s lawyers challenged the grand jury’s involvement, Manning ruled he had seen no evidence from Wilson, R-Lexington, that the powerful House speaker might have committed a criminal violation.
The State Grand Jury is supposed to review possible crimes, Manning said, ruling the allegations against Harrell related to possible civil violations of state ethics laws. Those alleged violations belonged before the House Ethics Committee, which has authority to discipline state representatives, Manning said.
SLED spent 10 months compiling a report about its investigation into allegations that Harrell had spent campaign money on his private plane, used his House office to help his pharmaceutical business and, in violation of state law, appointed his brother to a panel that reviews candidates who want to be judges. After receiving SLED’s report, Wilson announced the State Grand Jury would investigate the allegations. It is unclear if Manning has read the SLED report.
Justices, especially the two who previously were members of the S.C. House, questioned Waters about why the Harrell case should be kept before the State Grand Jury. They asked if the allegations really weren’t civil concerns that belonged before the House Ethics Committee.
“This investigation has gone on for quite a while,” noted Associate Justice Don Beatty, who served four years in the House. “You had more than (the original) allegations. You had a state investigation. Didn't you have something that you could give the impaneling judge (Manning) to keep this investigation before the grand jury going?”
Waters said he did not agree with Beatty's suggestion that the attorney general must provide periodic updates to a judge on the progress of the grand jury. Wilson wanted to give the State Grand Jury time to do its work, an investigation that would be slowed if it had to be stopped by “mini-trails” seeking legal clarification of issues, Waters said.
Still, justices pressed Waters, asking whether Wilson’s office had proven criminal intent in Harrell’s actions, making them legitimate fodder for the State Grand Jury, or whether the potential violations were civil infractions that should go to a House panel first.
Harrell has not been charged with a crime or civil ethics violation.
However, the attorney general’s office can consider any violation of state ethics laws as a possible crime, Waters said, adding there is a difference between a crime and a legislator’s unintentional mistake.
But, Waters complained, the speaker’s lawyers are acting as if a decision has been made to file criminal charges since the allegations were referred to the State Grand Jury. “It's the beginning, not the end,” Waters said of the investigatory process.
Robert Stepp, an attorney representing Harrell, said he was concerned the attorney general will try to bypass the House Ethics Committee more frequently in the future, using the argument that any ethics violation could be criminal.
Stepp told the justices that Manning had the right to ask for proof of potential criminal wrongdoing. Manning was left with no choice but to end the State Grand Jury investigation when Wilson did not present any criminal evidence, Stepp said.
“Whatever (Manning) had seen didn't satisfy him,” Stepp said after the hearing.
If the justices uphold Manning’s ruling, Wilson would have to restart his investigation to determine if Harrell violated any crime, Stepp said. If not, Harrell will ask Manning to disqualify Wilson, the state’s top legal official, from the case, Stepp said.
Stepp said Harrell's reputation has been hurt by the way the case has been handled, especially by a news release from the attorney general's office announcing the grand jury investigation.
Supreme Court Chief Justice Jean Toal, who served for 13 years in the House and whose re-election this year was aided by Harrell, took Wilson's office to task for issuing the news release.
“The whole behavior in this case has been very strange,” she said.
Waters tried to bring up the news release again at the end of hearing, but Toal cut him off.
Wilson’s office has issued at least one other press release about a case going to the grand jury, an investigation into public corruption allegations against then-Lt. Gov. Ken Ard, R-Florence. Ard resigned after a guilty plea.
The attorney general's office had no comment after Tuesday’s hearing.
Harrell, who came to court with his wife and children, said afterward: “The justices made it clear to us that, from what they've seen, the attorney general was simply trying to convict me in the court of public opinion because he can't seem to get it done in the courtroom.”
Ashley Landess, head of the libertarian think tank that filed the original allegations against Harrell with Wilson's office, said she has little confidence in the independence of S.C. judges. Those judges, including Supreme Court justices, are elected by the General Assembly and dependent on legislators for their re-election.
“If this court rules wrong, I don't know what that means for our state,” said Landess, president of the S.C. Policy Council.
No timetable for a decision from the court was announced.
But Harrell attorney Stepp said he expected a ruling soon.