The South Carolina supreme court issued a long-awaited ruling this week in connection with ProbeGate, a major investigation into corruption at the S.C. State House that started out with tremendous promise but wound up fizzling out a little more than two years ago.
Unfortunately, the court’s ruling was every bit as anti-climactic as the investigation itself … especially as it related to the corporate defendants at the heart of the alleged misconduct.
To recap: The immediate issue facing the court was the status of an October 2018 guilty verdict entered against former S.C. judiciary chairman and code commissioner Jim Harrison – one of five ranking GOP leaders ensnared in the pay-to-play scandal at the heart of this investigation. Harrison was found guilty of perjury and misconduct in office at trial and sentenced to a year-and-a-half in prison – the only ProbeGate defendant to draw jail time.
The ex-lawmaker has remained free on an appeal bond, however.
Justices were, by their own admission, “sharply divided” on this case – which revolved around the extent of prosecutorial authority granted to ProbeGate prosecutor David Pascoe by S.C. attorney general Alan Wilson.
Pascoe has maintained he had unlimited prosecutorial authority due to a referral from Wilson’s office, while Wilson maintained that Pascoe was limited to investigating specific allegations contained in a report prepared by the S.C. State Law Enforcement Division (SLED) early on in the inquiry.
In light of these divisions, justices upheld one of the convictions against Harrison – the perjury rap – but reversed his conviction for misconduct in office and remanded it back to the lower court.
Why did they do that? Because according to their ruling (.pdf), Pascoe “had the authority to prosecute (Harrison) for perjury, but did not have the authority to prosecute (him) for misconduct in office.”
“Solicitor Pascoe’s authority was limited by attorney general Wilson,” the court concluded, and a limited recusal by the latter’s office did not mean it was taking itself off the case completely, as Pascoe had asserted.
In fact, chief deputy attorney general John McIntosh “specifically declined to recuse the attorney general’s office” from investigating other allegations that may have followed from the SLED report.
That would seem to validate the legal argument put forward by Wilson’s office from the beginning, that it was recusing itself in two specific cases but reserved the right to prosecute – or assign another solicitor to prosecute – other allegations.
Justice Kaye Hearn lauded Wilson in her ruling.
“I have nothing but the highest respect and personal regard for our attorney general and believe he conducted himself honorably throughout this investigation,” Hearn wrote.
Ultimately, though, the practical effect of the prosecutorial struggle is moot. Harrison “must serve the maximum eighteen-month sentence imposed by the circuit court.”
“We are pleased with today’s sweeping recognition by the Supreme Court of the constitutional powers of the Attorney General in criminal matters,” a statement from Wilson’s spokesman Robert Kittle noted. “This ruling is broader than one specific case and it firmly establishes the role of the Attorney General in future cases. Today’s decision is consistent with the position this Office has always taken with regard to criminal cases.”
“We also appreciate Justice Hearn’s recognition in her dissent that Attorney General Wilson and his Office acted honorably throughout this investigation,” Kittle added.
Left to be determined, though? How the court’s treatment of the ongoing battle between Pascoe and Wilson will impact the ProbeGate cases remaining on the docket – most notably the perjury and obstruction of justice charges filed against veteran “Republican” strategist Richard Quinn.
According to Pascoe, Quinn lied to a statewide grand jury on numerous occasions during its investigation of his empire.
But when? And on what subjects?
All of a sudden, these are incredibly important questions given the court’s decision to effectively curtail Pascoe’s prosecutorial reach. Quinn’s attorney – David Aylor of Charleston, S.C. – told us he was in the process of reviewing the 36-page ruling and would respond on his client’s behalf once he had completed his review.
Quinn was originally charged with conspiracy in connection with the case, but that charge was dropped as part of a controversial plea deal that prosecutors believed would result in jail time for his son, former S.C. majority leader Rick Quinn.
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The younger Quinn was one of four former lawmakers who pleaded guilty to misconduct in office charges and resigned his office in connection with ProbeGate. All of those lawmakers were sentenced to probation.
The biggest unresolved issue, however, remains the question of Pascoe’s authority to enter into ethically dubious “corporate integrity agreements” with multiple defendants that we believe should – and would – have been indicted by the grand jury he impaneled.
In fact, the ProbeGate grand jury report made it abundantly clear the grand jury found probable cause to indict these corporate defendants.
“Corporate entities retained Richard Quinn for the purpose of gaining access to and influence over public officials, and by failing to report Quinn’s services, influenced the outcome of legislative matters with no accountability or disclosure to the public,” the grand jurors who investigated Quinn and his cronies wrote in a report released in October of 2018.
Why were these corporate defendants not indicted and subject to prosecution?
Because they agreed to pay $350,000 in monetary fines … money which was routed directly to Pascoe’s office.
As noted previously, these agreements trouble us. In fact the entire ProbeGate investigation “left far too much meat on the bone as far as we are concerned – particularly with regard to the corporate clients implicated in this pay-to-play scandal,” we noted in December 2018.
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More recently, we wrote that “allowing corporate entities to basically buy their way out of criminal charges is not ‘integrity,’ in fact some would argue it is no better than the sort of behavior Pascoe was prosecuting in the first place.”
Worse, even …
Justice John Few has assailed these agreements, accusing Pascoe of accepting “hundreds of thousands of dollars from major South Carolina corporations on the promise not to prosecute them for conduct the state grand jury found probable cause to believe is criminal.”
Astoundingly, though, Few and his colleagues refused to rule on the legality of the agreements – even after requesting an opinion from Wilson’s office on that very subject.
“Because the issue of the corporate integrity agreements is not technically before the court, we decline to rule on the matter,” a footnote in justice John Kittredge’s majority opinion noted.
Justices did, however, instruct the presiding judge over the state grand jury to “require an accounting of the funds” obtained by Pascoe and “direct that the funds be transferred to the proper account as provided by law.”
Once again, this news outlet never questioned Pascoe’s authority to conduct these prosecutions. In fact, for several years we aggressively advocated on behalf of his authority to do so – criticizing Wilson for what we perceived to be politically driven meddling. Furthermore, we have pointed out how this investigation succeeded in uncovering “incontrovertible evidence of systemic corruption within state government – for which five ranking Republican lawmakers were held partially accountable via their resignations from positions of public trust.”
But the job was not done … nor was it even half-done.
Unless of course your conception of justice includes “doling out slaps on the wrist to corrupt puppets – while letting the puppet masters buy their way out of criminal consequences.”
Which our definition most assuredly does not …
“If citizens want real accountability when their money is stolen, when their rights are violated, when their trust is abused and when their faith in the institutions they rely upon for equal justice is betrayed, then they have to insist upon it … and that starts by making their elected leaders insist upon it,” we wrote last January. “Absent such a deterrent, corruption will continue to run rampant in South Carolina.”
Some may believe the high court embraced such a deterrent by upholding Harrison’s conviction, but the truth is the justices whiffed on the heart of the matter – once again allowing those truly responsible for corruption in the Palmetto State to get away scot free.
Our hope? That Wilson’s office uses this ruling to aggressively pursue the unfinished business of ProbeGate – while at the same time entreating lawmakers to expand its ability to pursue public corruption prosecutions across the Palmetto State.
It is past time our leaders stop dancing around this issue and start holding those responsible for these crimes truly accountable.
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