Mimesis Law
20 April 2019

SC Attorney General Faces Off Against Local Prosecutor Over Corruption

Apr. 1, 2016 (Mimesis Law) — Some South Carolina legislators may find themselves at the center of yet another scandal. This time, they aren’t the ones making the threats. And despite a powerful ally, the threat to the legislature sounds legit. The ethics of state lawmaking are in the crosshairs of local prosecutor David Pascoe. State Attorney General Alan Wilson has stepped in, apparently in an attempt to protect the legislators. The actions of both prosecutors has set up what could be an epic showdown in the South Carolina Supreme Court, with serious political ramifications.

This all started several years ago when the Speaker of the South Carolina House of Representatives, Bobby Harrell, was indicted on charges related to campaign finance violations. A bitter battle ensued, with Harrell’s defense lawyers challenging Attorney General Wilson’s handling of the case. They claimed he should be removed, citing a conflict of interest. Wilson voluntarily removed himself from the case, appointing Solicitor David Pascoe to handle the matter.

Harrell’s case was resolved. He pled guilty to misdemeanor charges and left office in disgrace. But his guilty plea didn’t end the investigation into legislative corruption. Investigative reports in the case were heavily redacted, suggesting there was much more than Harrell’s campaign finance violations going on at the state house. More importantly, Harrell’s plea agreement required him to cooperate with any further investigation into public corruption.

Add in the United States Attorney lurking around the case and you end up with a very ominous situation for legislators who may have been playing a little fast and loose with the law. After the conflict of interest allegations, Wilson looked like a stand-up guy for handing the case off to Pascoe. By recusing himself, Wilson avoided the appearance of any conflict of interest.

There were rumblings last December that the Attorney General’s Office was not going to be helpful in this investigation. Solicitor Pascoe wrote to the Attorney General asking for an opinion on a critical part of his investigation. Pascoe wanted to know if lawmakers violated criminal laws by spending campaign money at businesses they or their family members owned. The Attorney General said that would not violate the law. In other words, state lawmakers were free to line their pockets or the pockets of family members. Profiting from their elected position was fair game.

Pascoe continued to investigate. His recent efforts led to the dispute with the Attorney General. Solicitor Pascoe tried to initiate a State Grand Jury investigation. This is a special prosecution procedure in South Carolina typically handled by the Attorney General. The State Grand Jury has broad investigative powers, including the ability to issue subpoenas and compel testimony, which a county grand jury cannot do.

Only the Attorney General can crank up a State Grand Jury investigation. As the Attorney General recused himself from the investigation into public corruption and handed the matter off to Pascoe, it makes sense Pascoe could initiate the action. Except Wilson now claims he can’t.

Wilson’s position is that he is the only one who can initiate an investigation by the State Grand Jury. Jim Parks, the Clerk of Court for the State Grand Jury, refuses to cooperate with Pascoe. He claims he works for the Attorney General, not the court system. He won’t issue subpoenas and won’t authorize Pascoe or his employees to act on behalf of the State Grand Jury.

In a letter to Pascoe last week, John McIntosh, a high-ranking official in the Attorney General’s Office, disputed Pascoe’s ability to initiate a State Grand Jury investigation. The letter also claimed to terminate any further authority the Attorney General had previously delegated. McIntosh wrote:

This action in terminating you has nothing to do with the merits of the underlying investigation, but is based upon my conclusion that all prosecutors must follow the law.

Interesting comment from a prosecutor’s office that insists on controlling an investigation despite an admitted conflict of interest. Pascoe’s response was clear. He had done nothing wrong and was not happy the Attorney General’s Office went behind his back to obstruct his use of the State Grand Jury.

Pascoe isn’t backing down. Rather than going quietly, he has filed a petition with the South Carolina Supreme Court to force the issue. The petition claims Wilson has designated him to act on his behalf and he has the same authority as the Attorney General. Pascoe isn’t mincing words. He has challenged Wilson to come meet him in court to resolve this matter.

Wilson struck back earlier this week, purporting to fire Pascoe and hand off the investigation to yet another local prosecutor. Solicitor Dan Johnson, his new pick, has refused the assignment. He thinks the matter needs to be decided in court. And probably wisely realizes nobody voluntarily steps into crossfire.

Wilson, too, minced no words, firing back at Pascoe in a press conference this week:

“[The allegations in Pascoe’s petition are] filled with half-truths, misinformation and at least one outright lie. A lie,” an angry Wilson told reporters, his faced flushed and his speech rapid. “There is an inference in there that has been reported as somehow me and members of my staff have tried to impede a public corruption probe. That is absolutely false.”

“I’m here to tell all of you that I have done the right thing,” Wilson said, before chronicling Pascoe’s purported defects as a person and a lawyer, and making it clear, that although he chose Pascoe as a special prosecutor, Pascoe was only chosen after Wilson’s five first choices turned him down.

Wilson’s attack on Pascoe leaves out the details everybody is interested in. Why is he so mad at Pascoe? Why did he recuse himself in the first place? And what has changed to make him think he no longer needs to be recused? Let’s face it, this very public temper tantrum has cursed any future investigation.

The whole situation is headed towards a Supreme Court hearing that likely nobody wants. Wilson initially did the right thing by recusing himself. While he has never specifically stated why he handed off the investigation, it seems clear there was at least the appearance of a conflict of interest. One must suspect this conflict is related to his political relationships with legislators who are or may become targets of the corruption investigation.

Wilson’s initial recusal took the politics out of the prosecution. But not for long. His attempts to obstruct Pascoe’s investigation have put this case right back where it shouldn’t be. Instead of a proper investigation, the case is now becoming a political football. Wilson seems unable to see that he has already fumbled it.

At the press conference earlier this week, Wilson repeatedly referred to Pascoe as having tainted the investigation. This is going to make any resulting prosecutions very difficult. Remember, this is an investigation Wilson was supposed to have recused himself from. That recusal should have assured the citizens of South Carolina that any investigation would take a fair look at possible corruption in the legislature.

Instead, Wilson has accomplished the exact opposite of what a recusal should do and then some. By stepping back into the case in such a public manner, he has raised the question of why he would try to block an investigation into legislative corruption. If he had relationships with targets of the investigation, it was smart to step out of it. But now that he is actively trying to take control back, it looks much worse.

Wilson is either trying to protect political cronies or he is in a petty power struggle with David Pascoe. Either way, prosecution is being overtaken by politics. Wilson’s actions will make him a loser in this situation because there is no way to remove the suggestion he is acting in his own interests. But ultimately, when politics rule prosecutions, the people lose. And if there is legislative corruption that will get a pass because of political maneuvering, the people of South Carolina are about to lose big.

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