Driving Under Another Kind of Influence

June 26, 2014

Inside Insight

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ariail chief justice toal

OUR DAY IN COURT

The hearing before the Supreme Court Tuesday felt like the meeting of a club that barely tolerates some members – members like Alan Wilson, who appeared to have brought guests (the close to 200 people who crowded the courtroom and filled the lobby). But they were forced to be civil and even make room for us.

But the whole thing didn’t seem to sit well with our hosts. Chief Justice Toal commented multiple times that she had never seen such behavior as when Alan Wilson released a brief statement that his office had referred the Harrell matter to the grand jury. She called such action “unprecedented,” and her disapproval was quite clear.

Apparently the attorney general wasn’t following protocol by alerting the public to the status of the Harrell matter. But as Cindi Scoppe at The State pointed out, it wasn’t unprecedented. Wilson did the same in the Ken Ard case.

There is no stated rule against doing so, and it hardly seems improper for the attorney general to alert the public when a case is referred to the grand jury. Wilson’s statement – it wasn’t a “press conference,” as the Chief Justice said, but an extremely brief statement – said only that the matter had been referred and his office would no longer answer questions about it. Why on earth would that be improper?

Harrell’s attorney made a point to agree with Justice Toal – a bit hypocritical given that the Speaker himself has repeatedly demanded the release of the entire SLED report, which is part of the grand jury investigation and thus cannot be released.

Judge Manning (who signed the order to empanel the grand jury in the first place) also pushed the A.G. to provide information that the grand jury investigation was criminal. Surely it would have been improper for the attorney general to have publicly released such information, or so it seemed to us “non-club” members. Yet the question came up again in the Supreme Court hearing – and again, the A.G.’s attorney was asked why no evidence was given to Judge Manning that the grand jury was investigating a criminal and not civil matter.

Would Judge Manning have signed the order to impanel the grand jury if he hadn’t been given sufficient cause to do so? Surely not, but that was another question that baffled.

Fortunately, this whole process has made one thing clear: whatever all the various judges and lawyers think about the case itself, everyone is willing to stipulate that I am not a lawyer. Glad we got that settled! The context for the question is that Harrell’s attorneys argue that the complaint we prepared was for the Ethics Committee and therefore should have been filed in the Ethics Committee because it alleged only ethics violations. The fact that our drafted complaint has become an issue at all speaks to the whole troubling underlying theme here: there is no legal basis at all for Judge Manning’s ruling that the A.G. needs permission to investigate a possible crime, or an official complaint from anyone. The document we drafted did cite ethics violations, but as Wilson’s attorney explained again, we cited ethics violations as part of a larger pattern of public corruption (which is a felony) arising out of ethics violations and therefore was clearly a criminal matter from the beginning.

But the important point for Harrell’s counsel, apparently, is that I’m not a lawyer.

The implication seems to be that as a non-lawyer (not in the club) I am not qualified to allege public corruption because I probably don’t understand it. Actually, the definition is pretty simple – public corruption is “any unlawful activity, under color of or in connection with any public office.” Even a journalism major can grasp that. Given the nature of the allegations against the Speaker – including that he converted his campaign fund to personal use and hid the nature of the expenses and that he used his position to benefit his business – it seems clear that, if true, those acts could only have been committed because of his public office.

There is and always has been in South Carolina an entitled ruling class that believes it should not be challenged, that it has the right to make whatever laws it wishes and interpret them however it wishes. Members of the political class simply don’t believe we belong in the process at all. The fact that one politician has gotten away with being the subject of a grand jury investigation without being challenged by one public official other than the attorney general, and that a judge ruled that the duly elected attorney general, who is constitutionally authorized to investigate any crime in any court in the state, could not investigate a politician for the crime of corruption until the legislative ethics committees gave approval … it’s all made the public keenly aware our “leaders” don’t believe in the rule of law so much as the rule of men. In this case, of one man.

Finally, it would seem that, however the Court rules, the matter of whether Alan Wilson should be thrown off the case for “conflict of interest” will still have to be resolved by Judge Manning. The so-called conflict alleged by Speaker Harrell is that the attorney general intimidated Harrell’s chief of staff, which Alan Wilson vehemently denied under oath. Surely if we are going to even consider that a conflict of interest, shouldn’t it be that of Chief Justice Toal, whose re-election campaign in the legislature was publicly led by Speaker Harrell?

It seems the rules of the club are beyond the grasp of us non-members.