In what critics describe as an unconstitutional power grab, the S.C. House on Wednesday quietly introduced legislation that would give lawmakers the authority to appoint a special prosecutor to investigate criminal violations of state ethics laws by the governor, attorney general and other executive-branch officials.
A proposed change to the S.C. Constitution would eliminate the attorney general as the state’s chief prosecutor.
The bill (H. 5072) sponsored by Florence Republican Rep. Kris Crawford, who was found guilty in 2012 of misdemeanor charges in a state income-tax case prosecuted by Attorney General Alan Wilson’s office, comes as House Speaker Bobby Harrell is battling to have Wilson, a fellow Republican, removed from handling his ongoing ethics case before the state grand jury.
Harrell, R-Charleston, is not listed among the 84 co-sponsors of the bill – nearly 70 percent of the House membership – though a House member who asked not to be identified told The Nerve Wednesday night that a number of his colleagues believe Harrell is behind it.
The House member said he was surprised that the legislation was placed on the House calendar “without reference,” meaning it wasn’t assigned to a committee as is normally done when bills are introduced in the chamber. He said he expected some House members to try today to get the legislation assigned to a committee so it could be afforded a public hearing.
The lawmaker also said at least a dozen co-sponsors are expected to remove their names from the legislation today, noting, “They didn’t know what they were signing.”
Neither Harrell nor Crawford responded to phone messages late Wednesday afternoon from The Nerveseeking comment. Wilson spokesman Mark Powell declined comment, saying only in an email response, “The Ag’s Office has a policy of not commenting on any legislation that isn’t part of our legislative agenda, so I have nothing to say on this.”
(After publication of this story, Powell this morning offered the following prepared statement: “Due to state grand jury secrecy requirements, it is inappropriate to comment on any matter that could have an impact on state grand jury investigations. As a general statement, we have confidence in the deliberative process of the General Assembly, and believe that members of the House and Senate will ultimately act in the public interest.”)
The bill was signed by 51 Republicans, including Crawford, and 34 Democrats, and includes the chairmen of most of the chamber’s standing committees. But Rep. Greg Delleney, R-Chester and chairman of the House Judiciary Committee, where the bill likely would be assigned under normal circumstances; and Rep. Kenny Bingham, R-Lexington, the House Ethics Committee chairman, were not among that group.
“I’m in the dark on these bills,” Bingham told The Nerve late Wednesday afternoon. “I knew nothing about the bills until about an hour or so ago. No one ever approached me about them.”
Meanwhile, the House is considering another bill (H.4453), sponsored by Rep. Kirkman Finlay, R-Richland, that would allow those who misuse campaign funds, including lawmakers, to “cure the violation” by reimbursing their campaign accounts from “personal funds in an amount necessary to make the campaign account whole,” as long as it is done within 30 days of notification. That legislation suffered a setback this week when debate was adjourned in the House Judiciary Committee.
Last year, following a report by The Nerve, the House dropped a proposal to decriminalize ethics violations, which would have meant that public officials would no longer face criminal penalties for many state ethics violations.
Under H. 5072, a majority of the 124-member House and 46-member Senate could authorize a special prosecutor to investigate any “alleged criminal violation” of state ethics laws “by a constitutional officer or other officer subject to removal” by the governor under state law.
They include those appointed to various state professional licensing boards and certain state agency governing bodies, including the state ethics and election commissions; the Workers’ Compensation Commission; the Department of Health and Environmental Control board, excluding the chairman; the Probation, Parole and Pardon Board; and the heads of the State Law Enforcement Division and Department of Public Safety.
Under the bill, if a special prosecutor is authorized by the Legislature, the Senate president pro tempore – currently Sen. John Courson, R-Richland – and the House speaker would choose the prosecutor, who “must be a member in good standing of the South Carolina Bar Association.”
“The special prosecutor is entitled to the full resources and utilization of the State Grand Jury as provided in this article and is deemed to stand in the place of the Attorney General when appointed pursuant to this section,” the bill reads.
Under a separate joint resolution (H. 5073), which was introduced Wednesday as companion legislation to H. 5072, the following paragraph would be deleted under Article V, Section 24 of the S.C. Constitution: “The Attorney General shall be the chief prosecuting officer of the State with authority to supervise the prosecution of all criminal cases in courts of record.”
Any constitutional amendment would have to be approved by two-thirds of the House and Senate, and by a majority vote in a general election. This year is the last year of a two-year legislative session, which means any legislation not passed by the General Assembly this year must be reintroduced next year.
“I don’t think you’ve got a two-thirds vote on the Senate side,” John Crangle, director of Common Cause of South Carolina, told The Nerve when contacted Wednesday. “I think it’s almost dead on arrival.”
The House, which is on a voluntary furlough for two weeks starting next week, also faces a May 1 crossover deadline to get legislation passed over to the Senate.
The Nerve on Wednesday asked Travis Medlock, who served as the Democratic state attorney general from 1983 through 1994, to review H. 5072 and H. 5073.
“The House bill (H. 5072) appears to be in clear violation of Article 1, Section 8 of the South Carolina State Constitution,” Medlock said in a prepared response. “Article 1, Section 8 provides for the separation of powers. The special prosecutor is with the executive branch, and any intrusion by the legislative branch would be in violation of the separation-of-powers doctrine.”
Kenneth Gaines, a criminal law professor at the University of South Carolina School of Law, voiced similar concerns when contacted Wednesday by The Nerve.
“It’s a separation-of-powers problem,” Gaines said after reviewing the legislation. “Anytime somebody (in the Legislature) wouldn’t agree with what the attorney general is doing or he’s on their trail, they could try to make an end run around it, and that’s not good.”
“There could be all kinds of self-serving reasons why a legislator would do it (seek the appointment of a special prosecutor),” Gaines added.
Asked if he could recall any similar legislation in South Carolina in past years, Gaines, who joined the USC School of Law in 1978, replied, “I’ve never seen it.”
Reach Brundrett at (803) 254-4411 or rick@thenerve.org. Follow him on Twitter @thenerve_rick. Follow The Nerve on Facebook and Twitter @thenervesc.