SC Attorney General Wilson loses bid to stop Pascoe from investigating General Assembly

The S.C. Supreme Court ruled Wednesday that Attorney General Alan Wilson can’t stop his special prosecutor, David Pascoe, from investigating possible corruption in the General Assembly.

Although Wilson tried to stop Pascoe – and apparently at least slowed Pascoe’s investigation for several months – the Supreme Court made it clear in its Wednesday ruling that Wilson acted unlawfully in trying to fire Pascoe and by trying to keep him from continuing his probe. Pascoe was working with the State Law Enforcement Division on the investigation.

“We find Pascoe has proven ...that the Attorney Generaal’s office in its entirety was recused from the readcated legilators invesigation, and Pascoe was vested with the fully authority to act as the Attorney General for th epurpose of the investigaiton,” the opinion said.

...the Attorney General’s Office’s purported termination of Pascoe’s designation was not valid,” the Supreme Court ruled in a 4-1 opinion.

Pascoe as special prosecutor had “all the power of the Attorney General, including the impaneling of a state grand jury,” the Supreme Court said.

It was an embarrassing defeat for Wilson, who had publicly portrayed Pascoe as an incompetent sixth-rate prosecutor with “nefarious intentions” who laced his recent pleadings to the Supreme Court with “half-truths, misinformation and at least one outright lie.”

And while Wilson had a stable of government lawyers to prepare his pleadings and hired a prominent private appellate lawyer to argue his case on June 16 in the Supreme Court, Pascoe prepared his own briefs and argued his case that day by himself in the high court.

In its 18-page majority opinion, the Supreme Court gave credence to none of Wilson’s allegations about Pascoe – personal or legal.

Instead, the high court’s majority said the answers to the main questions raised by the case – did Pascoe as special prosecutor have the authority to activate a state grand jury and can Wilson fire him – were easily answered: Pascoe has that authority, and Wilson cannot fire him.

“Wilson really humiliated himself by making allegations like that, by the fact he produced no evidence to support them, and then the Supreme Court found no basis for those allegations,” said John Crangle, director of S.C. Common Cause, a government watchdog group.

“The law and the facts were clearly on Pascoe’s side,” Crangle said.

The Supreme Court’s clear means that Pascoe now is the effective acting Attorney General for the purpose of Pascoe’s General Assembly investigation – and Wilson can’t do anything to stop him.

Wilson’s office released a statement after the decision came out.

“We respect the court’s decision and will abide by it,” said the statement, forwarded by Wilson communications director Hayley Thrift. Wilson declined a request to speak with a reporter.

Pascoe released a statement saying, “I am gratified by the S.C. Supreme Court’s decision today. I’m currently in Virginia dealing with a family illness, but expect to return to South Carolina tomorrow to meet with Chief Keel and his agents to resume work on this matter.”

Pascoe is 1st Circuit Solicitor, and his normal jurisdiction is the counties of Orangeburg, Dorchester and Calhoun.

John Freeman, professor of ethics emeritus at the University of South Carolina Law School, praised the decision.

“It used common sense, logic and the factual record to knit together a very good opinion,” Freeman said, noting the majority avoided getting tangled up in the minutia of this or that law. “It was very elegant, very simple and very fair.”

A key legal principle the court upheld is that once a lawyer recuses himself from a case, the lawyer cannot come back in and start interfering with the case, Freeman said. “When you are out, you are out.”

In making the decision, the Supreme Court “stood up on its hind legs and said, ‘We are a co-equal branch of government – we will do our job without fear and to the best of our ability and let the chips fall where they may’,” Freeman said.

showed that it is an inde

Rather than get caught up in the minutia of the law, the Supreme Court majority

In 2014, Wilson appointed Pascoe to be the “designated prosecutor” in the investigation of former House Speaker Bobby Harrell. During that investigation, in October, 2014, Pascoe notified Wilson’s office that SLED had uncovered more lawmakers who might might be engaged in public corruption.

After Pascoe notified Wilson’s office and named those individuals, Wilson, citing conflicts of interest, recused himself from the investigation. Some of the individuals cited by Pascoe were Wilson’s political associates, according to a confidential SLED report seen by The State.

In the summer of 2015, Pascoe and SLED Chief Mark Keel received letters from the Attorney General’s office that said Attorney General’s office was recusing itself from further investigation of the individuals with whom Wilson had a conflict of interest.

However, in February and March of this year, as Pascoe and Keel’s investigation of the General Assembly reached a crucial phase, Wilson and the Attorney General’s office took steps to stop them from going any further.

Specially, Pascoe and Keel had made a confidential showing to Judge Clifton Newman that they needed to activate a State Grand Jury, with its special powers of investigation. Newman agreed with them.

At that point, James Parks, the clerk of State Grand Jury, who by law has to issue State Grand Jury subpoenas, refused to do his job. Parks is an employee of Wilson’s office.

So, on March XX, Pascoe filed the first of two motions with the Supreme Court aimed at getting the high court to order Parks to do his job, without which the State Grand Jury can’t function, and also to issue a ruling declaring if Pascoe – as the designated prosecutor in this case – had the authority to activate the State Grand Jury.

Pascoe’s main argument was that once Wilson recused himself – or stepped aside, because of conflicts of interest – he couldn’t just step back into the investigation and stop his special prosecutor, Pascoe argued in briefs to the Supreme Court. Pascoe also argued that Wilson’s office had also recused itself.

Wilson’s pleadings argued state law gave the Attorney General, and only the Attorney General, the power to activate a state grand jury.

But the Supreme Court on Wednesday specifically rejected Wilson’s argument that only the Attorney General can activate a state grand jury.

“Were we to hold that only th eelected office holder is authorized to initiate a state grand jjry investigation, then even where the Attorney General himself became the subject of an investigation, only he could initiate a state grand jjry proceeding in the case against him. We conclud such a holding would lead to an absurd result,” the court ruled.

The court added, “...nothing in the statute reqwuires only the elected Attorney General may authorize a state grand jury investigation.”

While the litigation was pending before the Supreme Court, Wilson also held an angry press conference and denounced Pascoe as a liar and peddler of half-truths. A top aide to Wilson was discovered trying to launch a smear campaign to try to destroy Pascoe’s reputation.

In its opinion, the Supreme Court’s opinion gave great weight to an affidavit by SLED Chief Keel. Characterizing Keel as “a neutral witness,” the court wrote that Keel’s understanding was that since July 2015, “the entire Attorney General’s Office was recused from any further involvement in the investigation...”

Chief Justice Costa Pleicones wrote the majority opinion and was joined by Associate Justices Don Beatty, John Kittredge and Kay Hearn. Associate Justice John Few wrote a dissent in which he argued that a circuit court judge, and not the Supreme Court, should decide the issue.

Media lawyer Jay Bender praised the court for its openness. praised “This was a high lvevl dispute resolved in public, contrary to the way things are often done in South Carolina.”

This story was originally published July 13, 2016 at 5:20 PM with the headline "SC Attorney General Wilson loses bid to stop Pascoe from investigating General Assembly."