TWO YEARS ago, Alan Wilson made the difficult decision to hand what could be the most important case of his career to another prosecutor. And not just any prosecutor but one whom he acknowledged for the first time last week that he didn’t particularly trust.
He did this because a Circuit Court judge was impeding his investigation of then-House Speaker Bobby Harrell, and the Supreme Court was putting out some worrisome vibes. He knew that the only way the most powerful man in state government would ever be charged, much less convicted, was if Mr. Wilson was able to make that judge and Mr. Harrell believe that he was out of the picture.
Three months later, First Circuit Solicitor David Pascoe brought minor corruption charges that ended Mr. Harrell’s political career — which was precisely what our state needed.
Today, it’s time for Mr. Pascoe to show that same concern for justice above self.
It seems clear that Mr. Wilson is right when he says that state law allows only the attorney general to initiate a State Grand Jury investigation, in conjunction with the chief of SLED. Mr. Pascoe tried to bypass this requirement by using a procedure that allows the attorney general’s designee to expand the scope of an ongoing probe. But if the court allowed that procedure to be used to launch an entirely new State Grand Jury investigation — as this would be, since the old Harrell grand jury was disbanded nearly two years ago — it would invalidate the two-signature requirement, which was crucial to the Legislature’s willingness to pass the grand jury law.
But we are at an impasse, and Mr. Pascoe’s criminal case against one or more legislators cannot go forward as long as he refuses to acknowledge that he couldn’t launch that investigation and, more importantly, that Mr. Wilson had the authority to replace him as prosecutor even though Mr. Wilson had recused himself from the case.
There are at least three ways the impasse can be broken, and the best option is for Mr. Pascoe and Mr. Wilson to come to an agreement. This might sound crazy, but I think it’s possible that both men have been acting in good faith; the problem is that neither believes that of the other, for reasons that clearly predate this standoff.
My resolution would start with Mr. Pascoe saying, “I misunderstood the law, and as a result I assumed that the attorney general had dishonest motives when he removed me from the case, so I did what I thought I needed to do to preserve the integrity of this investigation. I am withdrawing my petitions to the Supreme Court and asking Mr. Wilson to do what he says he was willing to do on Good Friday: Sign the paperwork to properly initiate a State Grand Jury investigation that I would then oversee.”
And Mr. Wilson would need to accept the apology.
I asked Mr. Wilson if he would do that, and he said he would have to seriously consider it. But then he said his problem isn’t simply that he doesn’t trust Mr. Pascoe; the larger problem is that he believes Mr. Pascoe tainted his own ability to prosecute the case with what Mr. Wilson calls deceptive claims in his Supreme Court petitions.
Perhaps, but if Mr. Pascoe were to explain that his misreading of the law led him to bad assumptions about Mr. Wilson’s integrity, he could go a long way toward rehabilitating himself; it might make some people think he’s a sloppy lawyer, but the judge who signed off on the State Grand Jury investigation also seems to have misread the law.
It seems to me that any damage Mr. Pascoe has done to himself would be outweighed by having the case prosecuted by the person who has been working on it for nearly a year, rather than another prosecutor who isn’t invested in it.
If Mr. Pascoe drops his appeals but Mr. Wilson won’t let him retain the case, then at least we would be at a place where the attorney general could reassign the case without any legal questions. And he would need to do so, quickly, naming someone whose integrity and judgment are beyond question.
Finally, if none of that happens, the Supreme Court needs to do two of the things Mr. Pascoe is asking it to do: It needs to accept original jurisdiction — that is, to bypass the lower courts and hear the case itself. And it needs to expedite the case, because the public’s already-fragile trust in our criminal justice system’s ability to deal with political corruption is under great strain.
Once it does that, the court needs to think beyond this one case. If the court rules that recusal is forever and that it bars the attorney general from removing Mr. Pascoe from this investigation, it is saying that there are circumstances under which the attorney general is barred from exercising his constitutional duty to oversee the prosecution of all criminal cases in our state.
And that emasculation of attorneys general would have implications that go far, far beyond this case.
Ms. Scoppe can be reached
or at (803) 771-8571.