The SC Supreme Court sides with Pascoe against Wilson

Wilson, flanked by ex-AGs Charlie Condon and Henry McMaster, during his raging presser back in March.

Wilson, flanked by ex-AGs Charlie Condon and Henry McMaster, during his raging presser back in March.

Which surprises me. I haven’t read the decision yet, but John Monk’s story doesn’t explain how the court got around the fact that you can’t call a statewide grand jury without the attorney general.

All it says is that the court has essentially ruled that, for the sake of this investigation, Pascoe is the attorney general. Huh, seems like that would surprise those involved in writing the state constitution. But hey, they’re the experts, not me.

An excerpt:

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.IMG_david_pascoe

Although Wilson tried to stop Pascoe – and apparently halted Pascoe’s investigation several months ago – the Supreme Court made it clear in its Wednesday ruling that Wilson acted unlawfully in trying to keep Pascoe from continuing his probe. Pascoe was working with SLED on the investigation.

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

The Supreme Court’s decision means that Pascoe now is the effective acting Attorney General for the purpose of Pascoe’s General Assembly investigation – and Wilson can’t stop him from proceeding….

The Court seems to have essentially sided with the popular narrative that Alan Wilson was trying to stop an investigation into his political buddies — which I know a lot of folks accept as gospel, but which I don’t believe for a second. It seemed to me that Pascoe acted outside the law in trying to call the jury on his own — something that Wilson made it clear he was ready and willing to do for him.

Of course, Wilson didn’t do himself any good with that raging press conference — but that wouldn’t seem to change the law, just his political image.

But maybe the court ‘splained it in a way that negates my concerns. We’ll see…

35 thoughts on “The SC Supreme Court sides with Pascoe against Wilson

    1. Brad Warthen Post author

      What? You want ME to read it? That’s Cindi’s job! She reads it, and then explains it to me…

      Oh, all right; I’ll take a look at it. But I’m not going to enjoy it…

      1. Brad Warthen Post author

        I do like this bit:

        Recognizing the integrity of the parties involved, we decline to formally issue relief in the mandamus action, confident that our resolution of thecdeclaratory judgment action makes clear the responsibilities and roles of the parties.

        Translation: We are gentlemen, and the parties involved are gentlemen, so we need take no further action. We reside in a state of perfect confidence that the gentlemen will henceforth do the right and honorable thing…

        1. Bryan Caskey

          I liked that part as well. Sort of like a parent telling a child: “I’m not going to order you to make your bed each morning now that you know it’s what I want you to do, because I know you don’t need to be ordered to do what I want you to do.

          A gracious touch, I thought.

          1. Brad Warthen

            Speaking of gentlemen…

            This thing all broke down with that one, snotty message from Pascoe to the AG’s office last September.

            In a more civilized time, such a communication would have been dealt with decisively. Mr. Wilson, or Mr. McIntosh, would have sent their friends to speak with Mr. Pascoe’s friends, and he either would have offered an apology and explanation, or would have agreed to give satisfaction wherever and whenever the aggrieved gentleman desired.

            But at least the court has proposed to end it all in a courteous manner. I disagree with their conclusion, but I appreciate the tone…

      2. Brad Warthen Post author

        Wow. This self-righteous note from Pascoe last September was not calculated to win any friends in the AG’s office:

        I ask that your office not interfere in this investigation
        any further unless I ask for your assistance. . . . [I]t is my
        understanding from my discussions with SLED that your
        office conducted no further investigation into the matters
        after my October 1, 2014 email. . . . The Attorney
        General’s Office has a very clear conflict of interest in
        this matter. If the public is to have confidence in the
        integrity of the criminal process in this case, it is
        imperative that the Attorney General’s Office recuse
        itself. . . . [Y]our letter does nothing but heighten my
        concern that the Attorney General’s Office continues to
        work behind the scenes in an investigation for which you
        claim a conflict of interest (emphasis supplied).

        1. Mark Stewart

          That’s not snotty; it is drawing a line in the sand.

          Pascoe now has a huge responsibility; and I believe he is likely to earn it. Or continue to earn it…

          1. Juan Caruso

            Agree, Mark, but I strongly suspect Mr. Pascoe is actually striking for Mr. Wilson’s job in the next administration.

            1. Mark Stewart

              Juan, the Attorney General (in SC) is a constitutionally elected position. The AG doesn’t necessarily need to draft off the Governor. But the chance of a Dem winning any statewide position would be seismic these days.

              The less Wilsons in office in SC the better; from my perspective.

      3. Brad Warthen Post author

        “Cook’s email suggests the Attorney General’s Office’s sole concern was the “integrity” of the investigation—ensuring no one involved was leaking information to the media.”

        Wow, that’s not what I would assume “integrity of the investigation” would mean. I would assume it would mean stuff like Pascoe not tainting the process by calling the state grand jury into being when he lacks legal authority to do so… particularly in light of subsequent events.

        1. Brad Warthen Post author

          Again, near the end, they make a weird (to me, a naif who believes integrity requires transparency, not hiding stuff from the media) assumption as to what “integrity” means:

          Fourth, Cook’s emails suggest the only authority remaining with the
          Attorney General’s Offices was ensuring the “integrity” of the investigation, i.e.,
          ensuring no one involved was leaking confidential information to the media.

    2. Brad Warthen Post author

      “On March 30, 2016, Pascoe filed a Petition for Declaratory Relief with this Court,
      seeking the Court declare….Wilson’s attempt to revoke Pascoe’s
      designation in this matter was an ultra vires act…”

      Whoa! Them’s FIGHTIN’ words, boy!

    3. Brad Warthen Post author

      OK, here’s the nut graf, as we say in the trade:

      On the merits, as discussed infra, while some evidence weighs against Pascoe’s
      position, we conclude Pascoe has met his burden of proving by a preponderance of
      the evidence he was vested with the authority to act as the Attorney General in the
      redacted legislators matter, and that this authority necessarily included the power
      to initiate a state grand jury investigation. We further conclude McIntosh’s attempt
      to terminate Pascoe was not effective. Given these determinations, we find it
      unnecessary to issue a writ of mandamus as we expect the parties will act in
      accordance with this decision.

    4. Brad Warthen Post author

      Here, they say BOTH Wilson and Pascoe were wrong about this key point:

      Both Pascoe and Wilson argue any transfer of authority was governed by S.C.
      Code Ann. §§ 14-7-1650 et seq. (Supps. 2014 & 2015). We disagree, and find the
      transfers of authority were not governed by the State Grand Jury Act.

  1. Doug Ross

    ” which I know a lot of folks accept as gospel, but which I don’t believe for a second. ”

    Unlike dentists, 4 out of 5 justices disagree with you which would seem to be a pretty clear case then in terms of the law. The opinion mentions the “redacted legislators”. Hopefully they won’t be redacted for much longer. In a quick reading of the opinion the term “preponderance of evidence” is used multiple times to support the decision.

  2. Lynn Teague

    Attorneys who have commented on this to me have consistently focused on the problem of potentially watering down conflict of interest recusal. I don’t think the question of whether Wilson was or was not attempting to protect someone even mattered for the issues before the court, that is just background noise. This wasn’t about motive, this was about the meaning of recusal for conflict of interest and the delegation of the “full authority” of the AG.

    1. Brad Warthen Post author

      Right. And my understanding was that the AG could NOT recuse himself from the fact that a state grand jury could not be called without his participation…

      1. Doug Ross

        But for us stupid people, what motivation would Wilson have to prevent Pascoe from calling for a grand jury? It’s still not clear to me why he would be opposed if he truly didn’t have any idea what Pascoe was doing. “I don’t know what you’re doing but stop doing it”.

      2. Brad Warthen Post author

        No. What he was saying was, “You need to call a grand jury? I’ll do it for you,” because he maintained Pascoe lacked the authority to do so.

        The court ruled Pascoe had the authority, because Wilson had delegated it to him — even though Wilson believed he lacked the power to delegate that particularly power…

      3. Mark Stewart

        No. Brad, that’s incorrect. The Supreme Court, in rejecting both sides saying the State Grand Jury Act gave any basis for the transfer of power specifically called out the de facto transfer of responsibility which recusal represents. Pascoe had full authority to, along with SLED, activate the State Grand Jury panel in Wilson’s stead. That makes perfect sense – in all senses – for this situation.

  3. Brad Warthen Post author

    OK, here’s how they justify their ruling:

    Wilson asserts that pursuant to § 14-7-1630(B), and under all circumstances,
    regardless of any firewall or disqualification, the elected Attorney General
    personally is the sole individual authorized to initiate a state grand jury
    investigation. Specifically, Wilson argues his exclusive authority to initiate a state
    grand jury is non-delegable under § 14-7-1630(B), because other provisions of the
    State Grand Jury Act refer to the “Attorney General or his designee.” He contends
    that the absence of the term “designee” in the initiation statute should be read to
    require the Attorney General personally sign the state grand jury initiation request.
    We disagree.
    It is incontrovertible § 14-7-1630(B), requires the signature of the Attorney
    General in the authorization of a state grand jury investigation; however, we find
    the strict interpretation of the term “Attorney General”—to require the personal
    signature of the elected office holder—would lead to an absurd result. See
    Kennedy v. S.C. Ret. Sys., 345 S.C. 339, 351, 549 S.E.2d 243, 249 (2001) (finding
    statutes should not be construed so as to lead to an absurd result (citation omitted));
    Kiriakides v. United Artists Commc’ns, Inc., 312 S.C. 271, 275, 440 S.E.2d 364, 366 (1994) (citing Stackhouse v. Cnty. Bd. of Comm’rs for Dillon Cnty., 86 S.C.
    419, 422, 68 S.E. 561, 562 (1910) (holding regardless of how plain the ordinary
    meaning of the words in a statute, courts will reject that meaning when to accept it
    would lead to a result so plainly absurd that it could not have been intended by the
    General Assembly)).
    Were we to hold that only the elected office holder is authorized to initiate a state
    grand jury investigation, then even where the Attorney General himself became the
    subject of an investigation, only he could initiate a state grand jury proceeding in
    the case against him. We conclude such a holding would lead to an absurd result.
    See Kiriakides, 312 S.C. at 275, 440 S.E.2d at 366 (holding if possible, the court
    will construe a statute so as to escape an absurdity and carry the intention into
    effect (citation omitted)). A similar absurd result would arise where the Attorney
    General resigned or was rendered incapacitated, the effect of which would be that
    no state grand jury could go forward pending the election of, and qualification of,
    his successor. See id. We find such absurd results could not have been intended
    by the General Assembly. See State v. Cnty. of Florence, 406 S.C. 169, 173, 749
    S.E.2d 516, 518 (2013) (“The cardinal rule of statutory construction is a court must
    ascertain and give effect to the intent of the legislature”); Kiriakides, 312 S.C. at
    275, 440 S.E.2d at 366 (finding regardless of how plain the ordinary meaning of
    the words in a statute, courts will reject that meaning when to accept it would lead
    to a result so plainly absurd that it could not have been intended by the General
    Further, we fail to see how a recused individual could authorize a state grand jury
    investigation having no knowledge of the facts or evidence in the case. In the
    instant case, it remains unclear whether anyone at the Attorney General’s Office
    has any information regarding the investigation of the redacted legislators. To the
    contrary, according to Keel, no one at the Attorney General’s Office was made
    privy to any information obtained by SLED relating to the redacted legislators
    investigation after July 17, 2015. The facts of the investigation were known only
    by Keel, Pascoe, and their investigators.
    The purpose of § 14-7-1630(B), is to provide the mechanism for the initiation of a
    state grand jury proceeding. This responsibility should only be exercised by an
    individual with thorough knowledge of the investigation leading up to the request
    for a state grand jury. More to the point, how would an Attorney General
    firewalled from all aspects of an investigation possess the requisite knowledge as
    to whether subject matter jurisdiction lies with the state grand jury. …

    Accordingly, since we find Pascoe was acting with the authority of the Attorney
    General when he signed the initiation of the state grand jury investigation, we hold
    the initiation was lawful and valid. Because we find Pascoe lawfully authorized
    the initiation of the state grand jury investigation, the Attorney General’s purported
    termination of Pascoe after the initiation of the state grand jury was ineffective….

    OK, now I’m going to read the minority opinion…

  4. Brad Warthen Post author

    This part of Justice Few’s dissent could have been written by me — or rather, by Cindi Scoppe:

    The Attorney General makes two arguments of law in defense
    of his decision to fire Solicitor Pascoe. First, he contends a statute forbids a
    solicitor from suing the Attorney General. Second, he contends the South Carolina
    Constitution gives him the absolute authority to supervise all criminal litigation,
    and thus to remove an appointed prosecutor when he deems it appropriate.
    Because I believe both arguments are valid, and because I believe the
    constitutional argument renders irrelevant any factual finding except an actual
    conflict of interest on the part of the Attorney General, I would not follow the
    approach chosen by the majority….

    1. Brad Warthen Post author

      This statutory grant of power is subject to the provisions of the constitution, and
      thus the use of the power to assign a solicitor to prosecute a case cannot amount to
      a relinquishment of the Attorney General’s responsibility under the constitution to
      supervise all criminal cases.

      Yes! That’s what I’m on about…

  5. Brad Warthen Post author

    I find the majority’s reasoning to be “lucid, intelligent, well thought-out.”

    But in the end, I find the dissenting Few more persuasive. As he concludes…

    By requiring the presiding judge of the circuit court to answer the key factual
    question of whether the Attorney General has an actual conflict of interest, and
    permitting the presiding judge to thereafter direct the proceedings accordingly, we
    comply with section 1-7-380, we enable a more precise fact-finding inquiry than
    this Court can conduct on the record before us, and we ensure the responsibility
    imposed on the Attorney General by article V, section 24 of the constitution to
    “supervise the prosecution of all criminal cases” is honored unless he actually has a
    conflict of interest that prevents him from doing so. See also S.C. Code Ann. § 14-
    7-1650(C)(2) (Supp. 2014) (“Any doubt regarding disqualification [of the Attorney
    General] shall be resolved by the presiding judge of the state grand jury.”). I
    respectfully argue that this is the procedure we should follow.

  6. Lynn Teague

    I often agree with Cindi, but not this time. I think the majority made a sound ruling. Also, I don’t think there is a risk that future AG’s will refrain from declaring a conflict of interest because of this ruling. Why? Out of fear that the designee will convene the Grand Jury in the limited cases to which the recusal applies? I just don’t think so.

    1. Brad Warthen Post author

      As usual (but not always), I agree with Cindi.

      It’s not a black-and-white thing, though.

      When I read the majority’s ruling, I thought it made a lot of sense. But when I read the dissent, I thought, “No, he makes MORE sense.”

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