Supreme Court Gives Green Light to Grand Jury Investigation of House Speaker

July 10, 2014

Investigative Reports

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Bobby HarrellS.C. Attorney General Alan Wilson can continue a state grand jury investigation of House Speaker Bobby Harrell and doesn’t need a legislative committee’s permission to do so, the S.C. Supreme Court unanimously said Wednesday.

But the five justices sent the state’s most closely watched legal case back to Richland County Circuit Judge Casey Manning to determine whether Wilson should be disqualified from participating in the state grand jury proceedings involving Harrell. The speaker earlier this year asked Manning to remove Wilson from the case, claiming Wilson had threatened his chief of staff in a private meeting last year. Wilson denied it, and Manning didn’t rule on the matter.

The high court also said in a footnote that any future arguments before Manning – the administrative judge overseeing Harrell’s case – “regarding jurisdiction or any other ancillary matter” should be held in private because of the “secrecy afforded state grand jury proceedings.”

Manning held public hearings on March 21 and May 2 before ordering on May 12 that the state grand jury investigation be halted, though the Supreme Court later ruled the investigation could continue pending an appeal by Wilson.

The court’s 12-page ruling, which was issued shortly after 4:30 p.m. Wednesday, did not have a main author, as is commonly done in many other formal opinions. The ruling was issued just 15 days – a lightning-fast decision for the court – after the justices heard oral arguments before a standing-room-only crowd that overflowed into the lobby of the Columbia courtroom, located across the street from the State House.

Harrell, the House speaker since 2005 and who was first elected to the House in 1992, did not return a phone message from The Nerve Wednesday evening seeking comment on the ruling. The Charleston Republican has publicly denied doing anything wrong, and he has not been charged with any crimes.

Contacted initially Wednesday evening, Gedney Howe of Charleston, one of Harrell’s attorneys, told The Nerve he didn’t have any comment on the ruling because he had not yet read it. He asked The Nerve to contact him later in the evening but did not respond to follow-up messages.

Another Harrell attorney, Bart Daniel of Charleston, did not reply to a phone message from The Nerveseeking comment.

Contacted Wednesday evening, Mark Powell, chief spokesman for Wilson, a Republican, said only, “The Attorney General’s Office is not commenting at this time.”

Rule of Law ‘Restored’

The South Carolina Policy Council – the parent organization of The Nerve in February 2013 submitted a public-corruption complaint against Harrell to Wilson, who referred it to the State Law Enforcement Division. After a 10-month investigation, SLED turned its report over to Wilson, who announced in January that it had been referred to the state grand jury for further investigation.

Ashley Landess, the Policy Council president, initially said she was considering filing a complaint against Harrell with the House Ethics Committee. But she decided against it, citing inherent conflicts of interest with the committee given, for example, Harrell’s ultimate authority over committee staff, which she contended would prevent them from being objective in investigating the speaker if a complaint against him came to the committee.

Manning ruled in May that Ethics Act violations are civil, not criminal, matters, contending that because the allegations against Harrell are civil in nature, the House Ethics Committee, which can’t conduct criminal investigations of House members, has jurisdiction in the case. But the Supreme Court said Manning was wrong on the law, ruling that the state Ethics Act “criminalizes violations, and it is in the Attorney General’s exclusive jurisdiction to prosecute such violations.”

“The House Ethics Committee’s concurrent civil regulatory authority does not affect the Attorney General’s authority to initiate a criminal investigation in any way, whether or not there is a referral, or even a pending House investigation,” the top court said, pointing out in a footnote that there is “no House Ethics Committee investigation (of Harrell) currently pending.”

The justices said the state grand jury has the authority to investigate public-corruption cases, noting that the “crime of public corruption could include violations of the Ethics Act.”

In a statement issued Wednesday night about the ruling, Landess said, “The Supreme Court restored the rule of law in South Carolina, and that was a huge relief,” adding, “That was not a foregone conclusion.”

Landess continued: “Second, it appeared that the court clarified that while the grand jury judge can intervene in a grand jury investigation, it can be done only to determine whether the grand jury is acting outside of its jurisdiction or improperly investigating. That’s also a relief because we were afraid that the judge would be handed a blank check to shut down the grand jury.”

Landess said, though, the Supreme Court’s point that future Harrell hearings before Manning should be closed to the public is “very disturbing.”

“We already fought this battle,” she said. “Judge Manning did the right thing in immediately opening these hearings. There is no reason for these hearings to be closed – and the Supreme Court didn’t offer a reason – and that is a step backward.”

As for Harrell’s motion to remove Wilson from the case, Landess pointed out that Supreme Court Chief Justice Jean Toal didn’t recuse herself from the appeal, even though there were public calls for her to do so because Harrell actively campaigned for her re-election in February to her chief justice seat.

“If she shouldn’t be recused, then neither should Wilson,” Landess said.

“Finally,” Landess concluded, “let’s be clear: Bobby Harrell is entitled to an impartial judge, but he is not entitled to one who is biased toward him. Bobby Harrell is entitled to an attorney, but he is not entitled to an impartial prosecutor. We deserve an advocate. The speaker is contorting the justice system over and over to protect himself, but he is endangering the justice system for the rest of us.”

‘Botched Job’

Harrell’s efforts to stop the state grand jury from investigating him so alarmed three former state attorneys general – Travis Medlock, Charlie Condon and Henry McMaster – that they appeared together and issued a joint written statement at the May 2 hearing supporting Wilson.

“Over the past thirty years, not one of us ever imagined the Attorney General needed authorization from a legislative committee or political body in order to investigate or prosecute alleged criminal behavior by an elected official,” according to their statement.

Contacted Wednesday evening about the Supreme Court’s ruling, Medlock told The Nerve: “I anticipated a unanimous decision setting aside the Manning decision. I did not anticipate a remand on the conflict-of-interest issue.”

John Crangle, attorney-director of the government watchdog organization Common Cause of South Carolina, told The Nerve when contacted Wednesday that he wasn’t surprised that the court ruled that Wilson’s office has jurisdiction in Harrell’s case, noting, “To say that Wilson did not have jurisdiction would be absolutely asinine.”

Crangle criticized Manning’s handling of the case, contending that the 20-year judge should have ruled on the issue of Wilson’s disqualification at the same time he decided on the jurisdiction matter.

Because the disqualification issue will now go back to Manning, any ruling on that matter likely will be appealed to the Supreme Court, Crangle said, estimating the additional court hearings collectively could cost taxpayers and the litigants up to “several hundred thousand dollars.”

“It’s really a botched job by Manning,” he said. “Now we’re going to have two more rounds in the bout.”

Whether Manning, who issued the order impaneling the state grand jury in Harrell’s case, will close any future hearings to the public remains to be seen. Contacted Wednesday, Jay Bender, attorney for the South Carolina Press Association, said he believes the language in Wednesday’s ruling permitting subsequent hearings to be closed has to do with keeping evidentiary matters before the state grand jury secret, noting that Harrell contends Wilson hasn’t presented any evidence to the grand jury of crimes allegedly committed by Harrell.

State law mandates that state grand jury proceedings be done in secret. But Manning announced that the March 21 hearing would be open to the public – thwarting Harrell’s efforts to keep it secret – noting the issue in question then – whether Wilson should be removed from the case – was an “ancillary” matter.

“Now, the inquiry (in Harrell’s case) is what is before the grand jury, and historically, those matters have been secret,” Bender told The Nerve. “I think that note (footnote in Wednesday’s ruling) is an invitation to Wilson to present to Manning the evidence that has been presented to the grand jury.”

The Nerve, through the South Carolina Policy Council, is an associate member of the Press Association.

Reach Brundrett at (803) 254-4411 or rick@thenerve.org. Follow him on Twitter @thenerve_rick. Follow The Nerve on Facebook and Twitter @thenervesc.