S.C. Attorney General Alan Wilson has asked the state’s top court to review certain documents in secret related to the state grand jury investigation of House Speaker Bobby Harrell, The Nerve has learned.
Wilson on Friday filed a motion with the S.C. Supreme Court asking the five-member court for permission to submit a number of documents under seal to the justices, which, if allowed, wouldn’t be made available to the public. Justice Costa Pleicones conditionally granted the motion – pending the opportunity for Harrell’s attorneys to provide a response – on behalf of the court because the other justices were not present when the motion was filed.
A legal source told The Nerve that allowing the high court to review state grand jury documents – which, by law, generally can’t be disclosed by the attorney general – behind closed doors is significant because it would allow the justices to get a first-hand look at some of the evidence and would bolster Wilson’s position that the grand jury investigation is criminal, not civil, in nature. A public hearing before the high court is scheduled for June 24.
Richland County Circuit Judge Casey Manning on May 12 put a halt to the state grand jury investigation, ruling that the matter must go first to the 10-member House Ethics Committee, which, by law, can’t investigate criminal allegations. In his ruling, Manning said Wilson “failed to offer or present to the Court any evidence or allegations which are criminal in nature.”
The Supreme Court, however, in a 5-0 vote on Wednesday allowed the investigation to continue pending the appeal – in effect temporarily negating part of Manning’s ruling that said “neither the Grand Jury nor any other investigative agency shall take any further action concerning the ethics violations allegations discussed herein until such time as a final determination” is made by the House Ethics Committee or referred by the committee to Wilson.
In court papers filed Tuesday in support of the request to allow the investigation to continue, Wilson said Manning’s ruling is “unprecedented in American law and unsupported by any known legal authority.”
“The lower court’s holding that the Attorney General can be somehow prohibited from initiating a criminal investigation is inherently repugnant not only to the South Carolina Constitution and principles of law, but also simply unacceptable to the basic principles of government for the people of South Carolina,” Wilson wrote.
The South Carolina Policy Council – The Nerve’s parent organization – in February 2013 filed a complaint against Harrell, asking Wilson’s office to investigate what Policy Council President Ashley Landess described in a letter accompanying the complaint as a possible “pattern of public corruption that would be out of the jurisdiction of the House Ethics Committee to investigate.”
Wilson referred the Policy Council’s complaint 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. Under state law, the SLED chief and attorney general must jointly agree to a state grand jury investigation, and a judge assigned to the grand jury has to impanel the jurors.
“Beginning with the initiation of a SLED inquiry in February 2013, and continuing with the impanelment of a State Grand Jury investigation in January 2014, this criminal investigation has continued for well over a year,” Wilson said in court papers.
Harrell, R-Charleston and the House speaker since 2005, has repeatedly denied publicly he has done anything wrong, and he has not been charged with any crimes. As has been his longstanding practice withThe Nerve, he did not respond Saturday to a phone message seeking comment on the latest court development. Charleston attorney Bart Daniel, one of Harrell’s lawyers, also didn’t return a call Saturday seeking comment on that matter.
A legal source with years of experience dealing with grand jury investigations, who asked not to be identified, told The Nerve last week that Wilson could try to show that there are “allegations separate and apart from the (state) Ethics Act” against Harrell by filing state grand jury documents under seal to the Supreme Court.
“You could confidentially determine that,” the source said.
The source also said he didn’t understand how Manning, if he impaneled the state grand jury in Harrell’s case, could ultimately rule there was no evidence of criminal allegations, given that to impanel a state grand jury, the administrative judge would have to make a determination that a crime or crimes might have been committed that would fall under the jurisdiction of the grand jury. The state grand jury is authorized to investigate public corruption cases, including crimes that fall within the state Ethics Act, such as converting campaign funds for personal use; and other offenses that are outside the Ethics Act, such as bribery, according to the source.
Public corruption for the purposes of the state grand jury is defined under state law (Section 14-7-1615(B) of the S.C. Code of Laws) as “any unlawful activity, under color of or in connection with any public office or employment …”
The Policy Council’s complaint asked that Wilson’s office investigate whether Harrell:
- Used his office for his financial benefit or that of his family business;
- Used campaign funds for personal purposes;
- Failed to maintain required records documenting his campaign expenditures;
- Adequately itemized campaign reimbursements as required by state law; and
- Violated state law by appointing his brother to a state judicial screening panel.
State law (Section 14-7-1720 (A) of the S.C. Code of Laws) bans the attorney general from disclosing witness testimony or other evidence before the state grand jury “except when directed by a court” for certain purposes, such as “complying with constitutional, statutory, or other legal requirements, or to further justice.”
A state court rule (Rule 41.1) specifies the procedure for parties in a legal case seeking to file documents under seal with a court. If the request is granted, the court can review the documents “in camera,” or in private.
Both sides are expected to file written briefs outlining their positions in advance of the June 24 hearing before the Supreme Court. The justices typically don’t publicly announce deadlines to issue their rulings.
The Nerve last week reported that Chief Justice Jean Toal declined to comment about whether she would recuse herself from hearing the appeal. The Nerve previously reported that Harrell actively campaigned for Toal’s successful re-election bid in February before the General Assembly. Toal, who was first elected chief justice in 1999, defeated Pleicones, who has been on the high court since 2000, by a 95-74 vote.
Reach Brundrett at (803) 254-4411 or rick@thenerve.org. Follow him on Twitter @thenerve_rick. Follow The Nerve on Facebook and Twitter @thenervesc.