Category Archives: Rule of Law

Do you believe in the concept of the rule of law? If so, what is your personal relationship with it?

Rep. Hill, from his campaign Facebook page.

On a couple of occasions during my years chairing The State‘s editorial board, someone who had come to meet with us to advocate for a position on some complex issue would say, in response to our questions, “Wow. Y’all understand this better than a lot of legislators.”

I can’t recall now whether I was ever startled into saying this out loud, but I know what I wanted to say whenever this happened: “Well, I certainly hope so!”

You may think that sounds arrogant and conceited. But it wasn’t really. It was based in extensive experience with legislators like Rep. Jonathon Hill, R-Anderson, who distributed to SC judicial candidates a questionnaire with such questions as:

9. Do you believe in the “Supreme Being” (SC Constitution, Article VI, Section 2)? What is the nature of this being? What is your personal relationship to this being? What relevance does this being have on the position of judge? Please be specific….

14. Please name an example of a Federal violation of the 10th Amendment of the U.S. Constitution, and state how you would respond as a state-level judge.

15. What role do you wish to play in effecting policy change?…

19. Would you ever assign the death penalty in a particular case? Under what circumstances?…

21. Do you believe unborn children have rights? If so, how would those factor in to your decisions as a judge?…

24. Would you perform a homosexual marriage, either voluntarily or involuntarily?

25. Does the 2nd Amendment of the US Constitution apply only to the militia and military, or to the people at large?…

To which one naturally wants to reply:

Do you believe in the rule of law and not of men?
If your answer is “yes,” what’s with the questions?

This case illustrates well something else I’ve learned over the years, something which I continue to have trouble convincing Doug of: Experience as a lawmaker has value. Which is why, if all other things are equal, I’ll pick a veteran lawmaker over a novice.

You see, Mr. Hill is a freshman lawmaker, in his first month in office. He is, in fact, a 29-year-old freshman legislator, which means that not only does he not know much about the way the political and legal worlds work, but he’s not overly burdened with life experience in general.

To his credit, he seems to understand this, and is willing to learn. As he said after staffers of the state Judicial Merit Selection Commission diplomatically told him some of the questions were “problematic:”

“You live and learn,” said Hill, a 29-year-old Anderson businessman and freshman legislator. “Maybe next year I’ll be in a better position to — if I put out a questionnaire — to craft it in a way that would work a little bit better.”…

I find that reassuring. I am less comforted that he also said this:

Hill said he tried not to ask leading questions because he wanted honest answers. “If you’re a candidate and you tell me … what you think I want to hear … that doesn’t help me at all.”…

So, apparently, he actually thought that no one could infer where he was coming from from these questions. But again, he’s young.

Fortunately, as of The State‘s reporting of the matter, no judicial candidates had actually answered Rep. Hill’s questions. This should make us all feel better.

Legislative progress (or at least, progress toward progress) against criminal domestic violence

‘Selma’ controversy brings ‘inspiration vs. results’ debate back into focus. But it’s not either/or; it’s both/and

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The new film “Selma” opens in theaters in Columbia Friday. So I haven’t seen it, any more than you have. But I’d like to comment on the controversy regarding the movie’s portrayal of LBJ.

Go read Richard Cohen‘s latest column, headlined “‘Selma’ distorts the truth about LBJ.” A couple of excerpts:

In its need for some dramatic tension, “Selma” asserts that King had to persuade and pressure a recalcitrant Johnson to introduce the Voting Rights Act of 1965. The movie also depicts Johnson authorizing FBI Director J. Edgar Hoover to smear King and — as King himself suspected — try to drive him to suicide. It is a profoundly ugly moment.

But a bevy of historians say it never happened. It was Robert F. Kennedy, the former attorney general, whoauthorized the FBI’s bugging of King’s hotel rooms. Yet, for understandable reasons, Kennedy appears nowhere in the film. By 1965, he was no longer the AG and, anyway, he remains a liberal icon. But LBJ — Southern, obscene and, especially when compared to the lithe Kennedy, gross of speech and physique — was made the heavy. He should get a posthumous SAG card….

[Those defending LBJ] include the historian Mark K. Updegrove, director of the LBJ Presidential Library; Diane McWhorter, author of “Carry Me Home”; David J. Garrow, author of “Bearing the Cross: Martin Luther King, Jr., and the Southern Christian Leadership Conference”; and, when it comes to the atmospherics of the Johnson-King relationship, Andrew Young, once King’s deputy. He told The Post that the contentious meeting between King and LBJ depicted in the film was, in fact, cordial. “He and Martin never had that kind of confrontation.” Young was there.

As for Garrow, he told the New York Times that “if the movie suggests LBJ had anything to do with” Hoover’s attempt to destroy King, “that’s truly vile and a real historical crime against LBJ.” The movie depicts exactly that….

As I say, I haven’t seen the movie, but I’ve seen the above trailer, which hamhandedly drives home the same falsehood that LBJ, and every other authority figure in the country, stood as a barrier that only MLK’s witness, courage, and eloquence could knock down. (If the filmmakers were not trying to make that point in the trailer, they should go back and try again).

We’ve been here before. Back during the 2008 presidential primaries, Hillary Clinton enraged some when she said that the eloquence of an MLK or a JFK — or, by implication, a Barack Obama — only gets you so far. You need an LBJ to effect real change. She, of course, was casting herself as the savvy insider, the latter-day LBJ. Here’s my column at the time on that subject, to refresh you.

But there’s more here than whether you prefer fine words or practical action. There’s also the constant tension between people who believe sincere passion, emotional purity expressed through public demonstrations by ordinary folk is better, more legitimate, and ultimately more effective than working through a system of laws, through elected representatives, to bring about needed reform.

I don’t have to tell you that I believe in the rule of law, in effecting change through the mechanisms of a republic, as opposed to marching in the streets. I had little patience with Occupy Wall Street, as you’ll recall. And as for the protests following the Ferguson fiasco, I think Dave Barry hit the nail on the head with this passage from his satirical look at the year just past:

Domestically, the big story is in Ferguson, Mo., which is rocked by a wave of sometimes-violent protests following the fatal shooting of Michael Brown by police officer Darren Wilson. The shooting ignites a passionate national debate whose participants have basically as much solid information about what actually happened as they do about Malaysia Airlines Flight 370….

So am I discounting the importance of all those civil rights marches, at Selma and elsewhere? Absolutely not. In fact, I believe they represent the one time in my life that such demonstrations were needed, were essential, and made a positive difference in the country. The moral, peaceful witness that Dr. King and the other marchers placed before the eyes of the country led to the development of a political consensus that made LBJ’s efforts possible. They prepared the ground.

But those protests did NOT force concessions from a hostile country, or hostile leadership in Washington. What they did was force the country to face the reality of Jim Crow. They made it impossible to look away. And the country, the great mass of public opinion, white as well as black, decided that we needed the change that the Voting Rights Act and Civil Rights Act represented. And master legislator-turned-president Johnson was the one who led us through that essential process.

It’s not either/or. It’s not black vs. white, or The People vs. The Man. It’s not passion vs. reason.

It’s both/and. We needed MLK and LBJ.

Cohen calls attention to an earlier piece by Joe Califano, vehemently defending his old boss LBJ from the film’s slander. I like this passage from a recording of the conversation:

On Jan. 15, 1965, LBJ talked to King by telephone about his intention to send a voting rights act to Congress: “There is not going to be anything as effective, though, Doctor, as all [blacks] voting.”

Johnson then articulated a strategy for drawing attention to the injustice of using literacy tests and other barriers to stop black Southerners from voting. “We take the position,” he said, “that every person born in this country, when he reaches a certain age, that he have a right to vote . . .whether it’s a Negro, whether it’s a Mexican, or who it is. . . . I think you can contribute a great deal by getting your leaders and you, yourself, taking very simple examples of discrimination; where a [black] man’s got . . . to quote the first 10 Amendments, . . . and some people don’t have to do that, but when a Negro comes in he’s got to do it, and if we can, just repeat and repeat and repeat.

“And if you can find the worst condition that you run into in Alabama, Mississippi or Louisiana or South Carolina . . . and if you just take that one illustration and get it on radio, get it on television, get it in the pulpits, get it in the meetings, get it everyplace you can. Pretty soon the fellow that didn’t do anything but drive a tractor will say, ‘Well, that’s not right, that’s not fair,’ and then that will help us on what we’re going to shove through [Congress] in the end.”…

You have a couple of key points there:

First, the president is stating clearly that he not only appreciates what Dr. King is doing, but sees it as essential to educating the public so that it will embrace change. Change will come when that average guy says “that’s not right; that’s not fair.” After that, and not before, you can “shove” reform through Congress.
Then, you have his assertion that in the end, however, true change will be effected through the system — by black Americans voting, as well as by raised consciousness among whites. Marching in the streets only gets you so far.

Which is why he pushed so hard for his signature achievement, the Voting Rights Act.

The trailer flits past this image so quickly that I had trouble freezing it on this frame to grab this image. But the reason what happened in Selma was effective was because it caused THIS reaction in mainstream America.

The trailer flits past this image so quickly that I had trouble freezing it on this frame to grab it. But the reason what happened in Selma was effective was because it caused THIS reaction in mainstream America.

You want to REOPEN the epic school-equity case? Really?

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I was a bit surprised that this was played at the bottom of The State‘s front page today. Back in my front-page-editor days, I would have found a way to get it above the fold along with the Metts plea deal — to the right of it, in the traditional lede position.

We spend two decades trying a case in which the poor, rural school districts of our state petition for an equal chance for the children in their charge. Finally, finally, the state Supreme Court issues its ruling — that the state is indeed not providing an equal chance for all its pupils, and must remedy the situation.

And now, this:

Gov. Nikki Haley and state lawmakers are fighting a court order aimed at improving the state’s school system in rural, poor districts.

In two petitions filed with the S.C. Supreme Court on Tuesday, attorneys representing Haley and lawmakers asked the justices to rehear a landmark school equity lawsuit that rural school districts, including Abbeville, brought against the state more than 20 years ago…

The court ruled 3-2 in November that the state failed to provide children in poor, rural districts with an adequate public education as required by the S.C. Constitution.

Without recommending specific policies or actions, the court ordered lawmakers and the school districts to devise a plan to address the problems the court identified, including weak rural tax bases, aging facilities and the difficulty of recruiting quality teachers to rural areas. The court also said the state’s method of paying for schools was unfair and needs to be updated, and hinted some small school districts may need to be merged.

However, Haley and Attorney General Alan Wilson’s petition for a rehearing says the Supreme Court’s majority “overlooked recent education initiatives put in place by (Haley’s administration) and the General Assembly that will directly affect rural school districts in South Carolina.”…

Really? You want to reopen a case that took this long, rather than go ahead and do what you should have done without a lawsuit?

What — do you think the court didn’t spend enough time pondering it before?

Look, I appreciate that the governor and lawmakers took steps in this past session to do more to help the poorer schools out. I’ve praised them for it. But that improvement is the sort of thing you would hold up to show, as we go forward, that you’re trying to implement the ruling — not used as an excuse to ask the court to reconsider.

But going back and trying to drag this thing out further is no way to follow up that good first step. The governor and lawmakers should instead be competing with one another to come up with the best ideas to improve the rural schools, starting perhaps with something that most politicians at least give lip service to — consolidating districts, to eliminate duplication in administration and give the poorest districts access to the tax base in the more affluent districts in their counties.

Or something. Show some leadership, folks. Instead of what I can only categorize as sullen foot-dragging.

SC story makes The Slatest. Guess which one…

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Yep, this one. And so it is that our reputation both precedes and follows us, without end…

The ACLU wants to send people to prison. Anyone besides me see the irony in that?

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Whether on the left or on the right, no one in the political mainstream is calling for anyone to go to prison over the CIA’s interrogation practices. Most of us just want to make sure we don’t do it any more in the future.

It seems ironic, therefore, that the ACLU, of all people, wants to get all punitive:

This is a shocking report, and it is impossible to read it without feeling immense outrage that our government engaged in these terrible crimes. This report definitively drags into the light the horrific details of illegal torture, details that both the Bush and Obama administrations have worked hard to sweep under the rug. The government officials who authorized illegal activity need to be held accountable. The administration’s current position – doing absolutely nothing – is tantamount to issuing tacit pardons. Tacit pardons are worse than formal ones because they undermine the rule of law. The CIA’s wrongful acts violated basic human rights, served as a huge recruiting tool for our enemies, and alienated allies world-wide. Our response to the damning evidence in this report will define us as a nation.

This should be the beginning of a process, not the end. The report should shock President Obama and Congress into action, to make sure that torture and cruelty are never used again. The Department of Justice needs to appoint a special prosecutor to hold the architects and perpetrators of the torture program accountable for its design, implementation, and cover-ups….

Anyone else see the irony here?

Was getting bin Laden a sufficient justification for torture?

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An “enhanced interrogation” scene in “Zero Dark Thirty.”

I raised this somewhere in this earlier thread, but I was reminded of it when I saw this story in The Washington Post this morning, which addressed one of the first questions that occurred to me when I saw reports about the torture findings yesterday: The report said torture was ineffective, but didn’t it lead us to bin Laden?

That’s just a question, not an argument. I don’t think we should have used torture whether it led to bin Laden or not. I’m with John McCain on this one (by the way, the Post also had a piece this morning about how for once, McCain and Lindsey Graham were in disagreement).

The Post reports that the Senate Intelligence Committee report directly refutes the story we’ve heard in the past, which was dramatized in “Zero Dark Thirty” (the credibility of which took a hit yesterday along with the CIA’s). The report says torture did not lead to bin Laden, or at least that its role was greatly exaggerated. The CIA continues to say otherwise:

In a detailed response to the committee report, the CIA rejected the study’s interpretation of events leading to the killing of bin Laden. It reiterates that coercive measures helped, saying the tactics led two detainees in agency custody, Ammar al-Baluchi and Ghul, to provide important clues to the courier.

It was “impossible to know in hindsight” whether interrogators could have obtained the same information that helped locate bin Laden without using enhanced techniques, the agency said.

“However, the information we did obtain from these detainees played a role — in combination with other important streams of intelligence — in finding the al-Qaeda leader.”

But here’s my BIG question: Even if torture was necessary to get bin Laden, was torture justified?

I say not. Partly because it was wrong, but also because it wasn’t that essential that we find him and kill him — and therefore not worth setting morality aside, if that is ever justified.

As much of a sense of justice, or closure, as it may have engendered in American hearts, as much as it told those who would kill innocent Americans, We will find you, and exact retribution, it was never necessary to the war effort, and it certainly wasn’t conclusive. It was a great coup de main, an exhibition of American arms and prowess (and as I’ve said, sound decision-making by the president in deciding to send in the SEALs, and not tell the Pakistanis we were coming). And bin Laden certainly had it coming.

But it wasn’t like catching the snitch in Quidditch. It didn’t win the game. The conditions that engender terrorism still exist. ISIL has morphed into something more dangerous than al Qaeda ever was, despite its one great coup.

The only thing that would solve the problem is systemic change in the region — cultural, economic, political change. Which is why some of us favored reshuffling the deck by taking out Saddam Hussein, in addition to tossing out the Taliban, overthrowing Qaddafi, and pressing allies in the region to liberalize their societies to the extent that is possible.

President Obama can kill bin Laden and every other identifiable terrorist in the region, with drones where commando raids aren’t feasible. Others will take their place, unless the conditions that produce them change.

But this nation lost its appetite for nation rebuilding several years back. The purpose of this post is not to try to reverse that trend. The point is to say, things being as they are… was it worth using torture to get bin Laden? If that’s even what we did…

The mission that took out bin Laden was a bravura performance by the Navy. But was it worth using torture to bring about?

Meanwhile, in SOUTH CAROLINA, a white cop is charged with murder for shooting an unarmed black man

Nice to see left and right getting together to back a pregnant woman

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This morning, I ran across this Tweet from a pro-life organization:

Pregnant Women Shouldn’t be Fired Because They’re Having a Baby, Not Aborting http://t.co/UhzuPGOuhF #StandWithPeggy pic.twitter.com/ZuZhLCJeyW

— LifeNews.com (@LifeNewsHQ) December 3, 2014

Later in the day, I got this release from the Population Connection Action Fund, which I gather is not exactly what anyone would call rabidly pro-pregnancy:

This morning the U.S. Supreme Court heard oral arguments in Peggy Young v. UPS, a pregnancy discrimination case. We are appalled that in the year 2014 pregnant women continue to face injustice in the workplace at the hands of employers whose actions are wrongly legitimized by lower courts’ narrow interpretation of the Pregnancy Discrimination Act.

Population Connection Action Fund stands firmly with Ms. Young in her fight for rectitude against UPS. No pregnant woman in the United States, or any country for that matter, should be stripped of her right to receive valid accommodations from an employer if she has a substantiated medical need…

I’m glad to see folks from both sides of the Culture Wars banding together to defend a woman in need.

Of course, if you read a bit further in each organization’s statements, you get to language where they are gulfs apart.

But I take these blessed moments of togetherness wherever I can find them.

Here’s an NPR story about the case that brought them together…

The much-anticipated Ferguson decision

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I was thinking this morning that, while all Monday-morning papers tend to be light on news, today was a particularly slow one.

I thought that because both The New York Times and The Washington Post were leading their iPad apps with a story that hadn’t happened yet. Which, in the strict definition of What Constitutes A Lede that I was taught, is something you don’t do. News is, at the least, something that has happened. Advancer stories have their value, but they don’t lead the paper, in the normal course of things.

Anyway, I share that as a way of having a post already up and ready in case y’all would like to comment when the Ferguson grand jury does report, which I see it is expected to do at 8 p.m.…

Court rules for poor kids in 21-year-old lawsuit, says SC hasn’t done enough to educate them

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I hadn’t intended to post today beyond the Open Thread, but this is major, historic news.

I wish Steve Morrison, who led the charge on this for so long, had lived to see this:

The South Carolina Supreme Court has ruled that state government is not doing enough financially to guarantee a “minimally adequate” education for public school students in poor areas of the state.

The court ruled 3-2 Wednesday in favor of plaintiff districts in the 21-year-old school equity suit.

The court rejected state lawmakers’ arguments that decisions on school funding belong to the General Assembly, not the courts. Lawmakers had argued that they alone should determine what the state constitution’s “minimally adequate” means.

Justices, however, found that the school districts must better identify solutions for their districts’ needs and work with state lawmakers on how to fix them….

Of course, the big, billion-dollar question is, What will South Carolina DO about it?

It is, unfortunately, up to our General Assembly. As Chief Justice Jean Toal wrote:

“it is the Defendants who must take the principal initiative,” the ruling states, “as they bear the burden articulated by our State’s Constitution, and have failed in their constitutional duty to ensure that students in the Plaintiff Districts receive the requisite educational opportunity”

But WILL they? They, after all, are the ones who have fought this. How can the Court compel action in this case? I don’t know enough to say…

The issue her opponents inexplicably leave on the table: Nikki Haley’s disregard for the rule of law

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I don’t suppose we should be surprised that Nikki Haley treats “lawyer” as some sort of cussword, because she’s shown time and again that she has little regard for the law itself.

Cindi Scoppe detailed, in her column yesterday, the known instances in which our governor has acted as a law unto herself since taking office. Here’s the list:

Gov. Haley first overstepped her authority at the end of her first legislative session, when she ordered the Legislature back into “extraordinary” session because it failed to pass a bill that she supported. (It was a bill I supported as well.) That would have been counterproductive even if she had the constitutional authority to do it, because it angered the legislators whose votes were needed to pass the bill. But she did not have the constitutional authority to do it. Legislative leaders sued, and the Supreme Court overturned her order.

Before that first year ended, she had assumed police powers, unilaterally imposing a curfew on Occupy Columbia protesters who had camped out on the State House grounds, and then having them arrested when they refused to comply with her unlawful order. (I think camping out on the grounds should have been illegal, but at the time it simply was not.) In issuing a restraining order, a federal judge noted that the governor was “making up” the rules as she went along. Our bill for that incident alone was more than a half million dollars.

In early 2012, when the state Supreme Court ordered party and election officials to obey a ridiculous but valid state law, Gov. Haley marched over to the state Republican Party headquarters and persuaded the GOP executive committee to ignore that order and put her favorite candidate back on the ballot. The Election Commission refused to acknowledge that lawless action, saving the governor and the party the ignominy of being found in contempt of court.

Later that year, the Legislature passed a budget that fully covered the increased cost of health-insurance premiums for state employees and retirees. Gov. Haley could have vetoed the funding but chose not to. Instead, when the perfunctory matter of approving insurance rates came before the Budget and Control Board, she persuaded the treasurer and comptroller general to join her in requiring state employees and retirees to pay part of the increase themselves. And again, I agree with her policy preference, but she simply did not have the authority to act. State employees sued, and the state Supreme Court ruled unanimously that the governor and her co-conspirators had violated the constitution by usurping the Legislature’s power to write the law.

As far as I know, Gov. Haley has not directly overstepped her authority since then. But her fingerprints were all over her DHEC director’s decision last year to tell hospitals, nursing homes and other health providers that they could ignore a state law that required them to get a certificate of need before making large purchases, after the Legislature failed to override her veto of the funding for the program. Once again, the Supreme Court ruled unanimously that this was completely lawless — but not before Lexington Medical Center and several other health providers spent huge amounts of money on expansion projects that they might have to abandon. And we’ll pay for that as well, through our medical insurance.

We are supposed to be a state of laws and not of men — or women, either. But our governor doesn’t get that.

Yesterday, at a lunch in connection with the Bernardin Lecture at USC (I’m on the committee; last night we hosted Sister Joan Chittister as our guest lecturer), the philosophy professor next to me got to talking first about Heidegger, then about the rise of the Nazis. At one point, he said something like (I wasn’t taking notes), “It’s a terrible thing when leaders see themselves as no longer bound by law.” He wasn’t talking about the Holocaust, or dragging the world into war. He was simply bemoaning the loss of the rule of law, as Hitler transitioned from chancellor to Führer.

Being very careful to say that we were talking about something several degrees of magnitude less evil or severe, I noted that we were seeing the same sad principle at work here in SC.

But Nikki Haley is no Hitler, not even a minor-league one. In fact, it’s not even a “degrees of magnitude” thing. I don’t see any evil at all in her. What I see is a terrible naivete, of a sort that you don’t ever want in someone in charge.

I think that at every stage in the incidents Cindi detailed, our governor meant well — by her lights. She meant no harm to anyone. As Cindi noted, in some instances she was trying to do something good. The restructuring measure she wanted lawmakers to come back and pass was something our state needed (and eventually got, largely thanks to Vincent Sheheen). And no, people shouldn’t be allowed to camp on the State House grounds. Trouble was, there was no law saying so at the time. The shenanigans she got up to with the state party were far less benign, but I think she honestly believed it was good for her chosen candidates to win.

No, the problem with Nikki Haley is that she simply doesn’t get something fundamental about the concept of the rule of law.

This is of a piece with her cluelessness on other things that an educated person who understands how the world works would get. If you’ll recall, back in the days that I was still endorsing her for legislative office, I found disturbing her unquestioning faith in such simplistic and erroneous nostrums as “I want to run government like a business.” Yes, a lot of people say that, but not people who understand government and business, and how they are not only different but supposed to be different. (You might call this, with apologies to Hannah Arendt, a case of being banal without being evil.)

She is innocent of such understanding. That doesn’t make her a bad person. But it makes her unqualified to govern.

As Cindi ended her column:

That is not just notable. That is frightening. That is the stuff of dictators and tyrants. That, more than policy or personal characteristics, is reason to replace her.

It’s frustrating that neither Vincent Sheheen nor Tom Ervin has pointed out this glaring abuse of power on the governor’s part. Perhaps they think voters wouldn’t get it, or wouldn’t care. And indeed, a lot of people — especially those who find the governor’s chip-on-the-shoulder, anti-intellectual populism appealing — would not. They’d dismiss talk of the rule of law as “lawyer double-talk” or some such, I suppose.

Perhaps such ignorance can be excused in a voter, if you’re really inclined to be forgiving. But not in one who would govern.

Prosecutors really had Harrell over a barrel

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Carolyn Callahan of WIS Tweeted this just before the hearing, showing the isolated ex-speaker in the courtroom. Hope she doesn’t mind my sharing it here…

There’s a country song in there somewhere.

The man who was arguably the most powerful person in state government, boasting only a few weeks ago about how the attorney general had failed to bring him down, pleaded guilty today to six counts against him, and still has other charges hanging over his head. The terms, as reported by John Monk:

In a plea hearing at the Richland County courthouse, Harrell was given six one-year prison sentences but all were suspended by circuit court Judge Casey Manning after Harrell, 58, agreed to the following conditions in a written plea agreement:

• Harrell agrees not to seek or hold public office for three years. He also will be on probation during that time. The Charleston Republican was first elected to the House in 1993.

• Harrell will pay a $30,000 fine plus an additional $93,958 to the general fund of South Carolina. Harrell will also turn over all of his remaining campaign account to the state’s general fund. That amount was not immediately available.

• Harrell agrees to cooperate with state and federal prosecutors, including being ready to testify “fully and truthfully at any trials or other proceeding” in state or federal court. Harrell must submit to polygraph examinations….

Here’s perhaps the most interesting part:

In getting Harrell’s cooperation to be a potential government witness, prosecutor Pascoe agreed to “nol pros,” or not prosecute four other indictments against Harrell. However, under a written plea agreement, Pascoe reserves the right to re-activate the indictments and prosecute Harrell if the former speaker lies to law enforcement officials.

Such written plea agreements – in which lighter sentences are given, and some charges are dropped, in return for a criminal’s information about other potential crimes involving other people – are common in federal criminal court. In federal court, defendants also agree to submit to lie detector tests and they know that dropped charges can be brought again if the government catches the defendant in a lie…

So it looks like prosecutors pretty much have Bobby Harrell on a leash for the foreseeable future. How the mighty have… well, you know the rest. But who foresaw it happening so quickly and dramatically in this case?

WOW — Bobby Harrell expected to plead guilty!

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Here’s another reason to feel better about the direction of our state — a big one.

Bobby Harrell, who so recently went about boasting that he had beaten efforts to bring him down, is now reported to be about to surrender completely. John Monk reports:

Suspended S.C. House Speaker Bobby Harrell is expected to resign his House seat and plead guilty Thursday to charges of using campaign funds for his personal gain, according to sources familiar with the investigation.

Harrell is scheduled to appear at a 10:30 a.m. hearing at the Richland County courthouse, according to a prosecutor’s press release….

Harrell, 58, who faces various charges of criminal misconduct in office, already has had a bond hearing and is free on $18,000 bond.

Harrell was indicted Sept. 10 on nine charges, including illegally using campaign money for personal expenses, filing false campaign disclosure reports and misconduct in office. It was the first time in memory that a sitting South Carolina House speaker has been indicted….

This is big stuff, people. This kind of thing doesn’t happen every century in South Carolina…

Time for change: Scoppe column on judicial vote-trading

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Did you see the exclusive story in The State the other day to this effect:

State and federal law enforcement officials are questioning S.C. legislators about potential illegal vote swapping in February’s race that re-elected the state’s Supreme Court chief justice, multiple sources have told The State….

Did you find yourself confused in reading it? Did you think to yourself, Don’t lawmakers trade votes all the time, on all sorts of issues? Since when is that illegal?

Well, Cindi Scoppe helps walk you through all that in her column today. She explains that yes, lawmakers routinely swap votes on issues — the General Assembly would get even less done if they did not.

But she also explains how a series of horrific events in 1995 that caused lawmakers to elect less-qualified jurists to the bench led to reform, and the practice was banned — with regard to judicial selection. (And ironically, the reform was passed by a vote-swapping deal between House and Senate conferees.)

Here’s her recap of what happened back then to lead to the reform:

it starts on a sunny spring day in 1995, when the Legislature elected E.C. Burnett to the Supreme Court and Kay Hearn to the Court of Appeals and re-elected Danny Martin to the Circuit Court. Mr. Burnett and Ms. Hearn were qualified for the positions, but analyses by the S.C. Bar and the Legislature’s judicial screening committee showed that they were the least qualified candidates in their hotly contested races. The committee found Mr. Martin didn’t understand the law at all, and the Bar had declared him unfit for the bench.

As senators filed out of the House chamber after the election, then-Sen. Robert Ford bragged about how it all happened: The Legislative Black Caucus pledged 20 votes for Hearn in exchange for Horry County votes for Martin and 18 votes for Burnett in return for four Spartanburg County votes for Martin; another five Spartanburg County legislators agreed not to vote in the Martin race.

“All kind of deals was made,” Sen. Ford told reporters. “I had to sell my soul to 10 devils.”

No one denied the deals, because vote trading always had been a part of judicial elections — whether the votes involved other judicial races or legislation. And why not? Trading votes is a natural part of the legislative process….

As so often during his lamentable lawmaking career, there was the brazen Robert Ford, standing as the poster child of bad government. But of course, he was just the most visible manifestation of something much more widespread. Perhaps we even owe him a debt of gratitude for making the unsavory situation so much more obvious.

That’s all history, but the thing that deserves even more attention is this conclusion:

I supported the current system for a long time, because it was such a huge improvement over what came before. But it never was a good system, because it encourages the sort of logrolling that is alleged to have occurred in the chief justice race, and because it allows one branch of government to control the judiciary.

And if one person rules the House with an iron hand — one person who is not the governor, who is not elected by all the voters of this state, and who is not accountable to the public for his power — it allows that one person to control the judiciary. As felt so disturbingly to be the case as we watched Mr. Harrell’s treatment in our courts in the weeks and months leading up to his indictment this summer on public corruption charges.

That’s sort of new, and sort of not.

I have long held the position that we should switch to a different method of choosing judges, preferably one like the federal system — the governor nominates, and the Senate confirms. That spreads out the power across the other two branches of government, and makes sure that the one individual having extensive say in the matter is one elected by all of the people, not just one House district.

But since the reforms of the 1990s, which did much to inject merit into the current system of election by the General Assembly, I (and the editorial board) acknowledged that the system was much better than it had been, and so we let judicial selection slide to a back burner. We still advocated for change when the subject came up, but we didn’t drive it the way we did so many other issues.

The events of the past year or two — with Bobby Harrell trying to bat the judiciary around like cat with a chew toy, so soon after a dramatic example of his power in choosing justices — mean it’s time to move real, substantive reform to the front rank of priorities.

It’s high time to stop letting the Legislature choose judges, all by its lonesome.

Cindi Scoppe’s litany of the trouble Bobby Harrell is in

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After crushing Bobby Harrell’s explanation that he just wrote down some wrong dates on his spending disclosures, Cindi Scoppe, in her column today, went into this litany of trouble the ex-speaker is in, even if you do swallow his “wrong date” defense:

If in fact he “did travel in his private airplane on a personal trip, transporting himself, family and friends to Florida for a high school baseball tournament” and then paid himself nearly $3,900 from his campaign account, as the indictment alleges, that’s not careless reporting.

If in fact he “used his campaign account to pay credit card debt and to pay for goods and services for his home, family and friends,” that’s not careless reporting.

If in fact he “concealed this unlawful payment scheme by … changing and altering the entries in his pilot log book,” that’s not careless reporting.

If in fact he “concealed this unlawful payment scheme by … creating schedules of flights in order to justify payments from his campaign account, when in fact some of the listed flights did not occur or were personal and not related to any official or campaign purpose,” that’s not careless reporting.

If in fact he “concealed this unlawful payment scheme by … misinforming law enforcement officers about the purposes and circumstances surrounding expenditures,” that’s not careless reporting.

If in fact he “concealed this unlawful payment scheme by … misinforming the House Ethics Committee about the reason he reimbursed his campaign account,” that’s not careless reporting.

If in fact he did all that, I’m not sure why there weren’t more chareges. Much of that sounds a lot to me like obstruction of justice. Sort of like that ominous reference to his paying himself nearly $300,000 “in untaxed income” sounds a lot to me like state and federal income tax evasion…

SC House Speaker Bobby Harrell indicted

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When state Attorney General Alan Wilson handed off his investigation of Speaker Bobby Harrell to First Circuit Solicitor David Pascoe, Harrell went around doing victory laps, as though it meant he was in the clear.

This afternoon, Pascoe announced that a Richland County grand jury had indicted the speaker. Pascoe’s statement:

First Circuit Solicitor David Pascoe announces that the Richland County Grand Jury indicted Robert W. Harrell, Jr., Speaker of the South Carolina House of Representatives, today on nine charges. The nine indictments are for two counts of Misconduct in Office (statutory and common law), six counts of Using Campaign Funds for Personal Use, and one count of False Reporting Candidate Campaign Disclosures.

A bond hearing date has not been set. Mr. Harrell has been provided copies of his indictments but he will be allowed to formally accept service of the true billed indictments and attend his bond hearing on the same date.

Once the date for service of the indictments and the bond hearing is set, the First Circuit Solicitor’s Office will provide ample notice to the media of the date and time. Solicitor Pascoe stated, “At this point in the process, the indictments are mere accusations. Mr. Harrell is presumed innocent until proven guilty.”

Solicitor Pascoe will have no further comment regarding this matter and respectfully requests that the media not contact his office regarding the case against Mr. Harrell. Any requests for indictments or future filings in this case should be directed to the Richland County Clerk of Court.

If you want to read the indictment itself, here it is.

Well, Mr. Pascoe certainly wasted no time on that. He’s either a really fast worker, or Mr. Wilson had already built him a pretty good case, it seems to me…

Would SOMEBODY please tell us what’s going on with Harrell?

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The Bobby Harrell investigation — or whatever it is, or was — continues to be as weird as ever.

Over the weekend, the speaker triumphantly announced that the grand jury investigation of him is over, and his nemesis, Attorney General Alan Wilson, is off the case.

Then, John Monk (who, as you’ll recall, first reported that Harrell was trying secretly to get Wilson kicked off the case) got “sources familiar with the matter” to confirm that the investigation is continuing, now being overseen by 1st Circuit Solicitor David Pascoe rather than Wilson.

Pascoe isn’t commenting. Neither is Wilson.

So. We don’t really know what is going on. But I agree with the conclusion of an editorial in The State today that said at some point, somebody needs to tell us, the people, what’s going on:

But here’s what we do know: Now that the Grand Jury no longer is empaneled, it cannot be argued that there is a legal prohibition on releasing the SLED report. And if Mr. Harrell’s victory dance has any basis — if in fact whatever remains of the criminal investigation is merely pro forma — then there is no reason that Mr. Wilson or Mr. Pascoe or whoever has possession of the report should not release it. Immediately.

For that matter, we don’t understand what legal basis there could be for Mr. Wilson refusing to comment on the status of the case. But then, there has been a lot about this case whose legal basis we have not understood.

It’s understandable that Mr. Wilson wouldn’t want to speak in detail and that the report would remain hidden from the public if the criminal investigation is indeed continuing. But even that must end at some point.

Whenever it ends, and however it ends, the attorney general must give an accounting for the way he has handled the case, and the SLED report must be released to the public. Not just because the subject of the probe has been so adamant in demanding its release, but because the voters need to know who has been doing his job and who has been abusing his office: our attorney general, or the speaker of the House.

Is there a war on transparency in South Carolina?

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There was an unmistakable theme running through different items in The State this morning — a tale of government transparency on retreat.

South Carolina has never been on what you’d call the cutting edge of openness in government. After having worked for years under Tennessee’s wide-open Sunshine Law, I was deeply shocked when I got here and learned how easily public bodies could meet behind closed doors.

Based on three items in the paper today, the cause of transparency seems to be retreating on multiple fronts:

Ethics chief limits who can talk to media — Under some circumstances, I can have some sympathy for public officials trying to make sure a spokesman actually speaks for the institution, rather than confusing the public. But it’s particularly disturbing to see that it’s Nikki Haley’s appointee as chairman who’s trying to narrow and control the information pipeline — given our governor’s own history on the ethics front.
SC high court: Autopsy reports not public records — Says press mouthpiece Jay Bender: “With this decision, I fear that the only version of events that will reach the public will be the one that exonerates government personnel from any claims of misconduct.” I also like what an editor at the Sumter paper said in response to the courts concern that releasing an autopsy could reveal sensitive health information: “There has never been an autopsy that has ever been performed that improved someone’s health.”
Cindi Scoppe’s column on “Sealed records, closed doors” — Cindi writes about a series of weird instances of judges in the Lowcountry not only sealing documents that should be public, but closing the courtrooms’ doors. This is based on a report from Fitz McAden, executive editor of The Beaufort Gazette and Hilton Head’s Island Packet, so maybe it’s limited to courts in that part of the state. But Cindi worries that it isn’t.

And as Cindi notes in that column, we have yet to see what mischief may be caused by the Supreme Court’s footnote about certain aspects bearing on the Bobby Harrell ethics case also being heard in camera. Cindi promises, with a warning tone, to keep an eye on that:

If the high court indeed was sending a signal to close the courtroom, that would constitute a dramatic departure from its longstanding policy, and if that turns out to be the case, we will have ample opportunity to discuss that. At length.

The trendline at the moment doesn’t look good…

The court’s unanimous ruling in the Harrell/Wilson matter

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Dave Crockett points out that we haven’t discussed the SC Supreme Court’s unanimous smackdown of Judge Manning’s bizarre ruling in the matter of Bobby Harrell, and Alan Wilson’s power to investigate him.

Maybe I’ve just been avoiding it, subconsciously, out of petulance over being scooped by that upstart Bryan Caskey:

Not on @fitsnews,not on @wis10,not on @bradwarthen Permanent Press: SC Supreme Court REVERSES in Harrell case http://t.co/n6gonSYEmR

— Bryan Caskey (@BryanCaskey) July 9, 2014

Bryan didn’t just scoop ME. I happened to read that Tweet while attending the awards ceremony at The State Wednesday afternoon. I followed his link, and passed my phone first to Cindi Scoppe, then to John Monk — two people who have done more than anyone to keep us informed on this case — to give them the heads-up. (To John’s credit, he had told me before we sat down that the ruling was sort of expected, “Even as we stand here.” Fortunately, another reporter from the paper was covering that base while he was occupied.)

What to make of the ruling?

Well, to start with, it affirms what remaining faith we have in the rule of law. The justices unanimously rejected the absurd argument that the trial judge had constructed of whole cloth.

On the other hand, Manning could still rule unfavorably on Wilson’s ability to continue to handle the investigation, as the judge was instructed by the court to consider Harrell’s original motion seeking to remove the attorney general from the case.

So justice is still not out of the woods.

And I’m still a bit worried by that footnote to the ruling: “Due to the secrecy afforded state grand jury proceedings, future arguments regarding jurisdiction, or any other ancillary matter, should be held in camera.” I’m not sure what that means, in terms of what will be cloaked in secrecy and what will not. You’ll recall that our awareness of this power struggle began with John’s story about how the attempt by Harrell to have the court consider whether to toss Wilson off the case secretly.

On that point, I await further elucidation.

There seems little doubt, though, that the justices have been distressed from the start by the splash this case has made on the front pages.

But how could it be otherwise — a struggle between the highest levels of two branches of our government, with the third branch caught uncomfortably between?

bradwarthen.com

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