CHIEF JUSTICE PLEICONES:
We agreed to hear these cases in the Court's original jurisdiction. The cases arise out of an on-going South Carolina Law Enforcement Division ("SLED") investigation into the past conduct of certain members of the General Assembly (the "redacted legislators"). Petitioner David Pascoe ("Pascoe") asks this Court declare "the Attorney General" recused himself and his Office from the redacted legislators matter, and vested Pascoe with the legal authority to act autonomously as the designee of the Attorney General with the powers of that Office. Pascoe further asks this Court command respondent James R. Parks ("Parks"), clerk of the state grand jury, to cooperate with Pascoe's initiation of the state grand jury investigation. We grant the petition for declaratory relief and declare that respondent Attorney General Wilson ("Wilson") and the Attorney General's Office were recused from the redacted legislators investigation; Pascoe lawfully sought to initiate a state grand jury investigation; and the Attorney General's Office's purported termination of Pascoe's designation was not valid. Recognizing the integrity of the parties involved, we decline to formally issue relief in the mandamus action, confident that our resolution of the declaratory judgment action makes clear the responsibilities and roles of the parties.
As these cases are being heard in the Court's original
On July 24, 2014, Wilson appointed Pascoe to serve as the "designated prosecutor" in the investigation and prosecution of Robert Harrell ("Harrell").
On October 1, 2014, Pascoe sent Wilson an email referencing a discussion they had the night before, and stating he believed the redacted legislators should be investigated as part of "any corruption probe on the legislature."
On October 2, 2014, Wilson emailed Chief Deputy Attorney General John McIntosh ("McIntosh") with Pascoe's email attached.
It is unclear from the evidence before this Court whether the initial Harrell investigation led to further investigations beyond that of the redacted legislators. The exhibits before this Court further do not contain any indication the Attorney General's Office itself investigated or pursued the redacted legislators matter after October 2, 2014, although later correspondence discussed infra indicate SLED was conducting an ongoing investigation after that date into these individuals. The correspondence between Wilson and McIntosh appear to be internal, and there is no evidence the content of the emails was made available to Pascoe or anyone outside the Attorney General's Office. The exhibits reflect the next communication regarding the redacted legislators matter was in July 2015.
On July 17, 2015, McIntosh wrote a letter to the Chief of the South Carolina Law Enforcement Division, Mark Keel ("Chief Keel"), asking he forward the SLED report resulting from the investigation into the redacted legislators to Pascoe "for a prosecutive decision." The letter further stated, "As you are aware, the Attorney General recused this office from the legislative members in the redacted portions of the SLED report but has not recused this office from any other matters" (emphasis supplied). From this language, we conclude that SLED may have been investigating matters related to the Harrell probe aside from those involving the redacted legislators.
Chief Keel has provided an affidavit to this Court to the effect that his understanding of the July 17, 2015, letter was that the Attorney General's Office had thereafter recused itself from any involvement in the redacted legislators matter, and that SLED was to deal exclusively with Pascoe. Chief Keel further states that in accord with his understanding, after the July 17, 2015, letter, he and SLED in fact dealt exclusively with Pascoe in the matter, and at no point was any
On July 24, 2015, McIntosh's July 17, 2015, letter was forwarded to Pascoe by Assistant Deputy Attorney General S. Creighton Waters ("Waters") as a scanned attachment to an email. Also attached to the Waters email was a scanned letter from Waters to Pascoe, stating:
The body of the email further stated Pascoe and SLED were to make the decision regarding whether redacted portions of the SLED report should be released to the media. This July 2015, correspondence notifying Pascoe he had been granted authority over the redacted legislators matter also informs Pascoe that the Attorney General's Office was recused.
On July 27, 2015, Pascoe responded to Waters' email, stating:
Given the status of the individuals who were the subject of this investigation, and the fact that it arose out of the state grand jury investigation of then Speaker Harrell, it may be inferred that further investigation into the redacted legislators matter
We have no evidence of communication between Pascoe and anyone at the Attorney General's Office from July 2015 to September 2015. However, by mid-September 2015, the exhibits reflect disharmony between Pascoe and individuals in the Attorney General's Office, apparently precipitated by media leaks regarding the redacted legislators investigation, and the fact that Solicitor General Cook had been in contact with an attorney representing one of the redacted legislators.
On September 17, 2015, McIntosh sent Pascoe a letter noting the Attorney General's Office had possessed the SLED report containing the redacted legislators' names for two years — indicating the report was generated during the Harrell investigation — and that no portion thereof was leaked until after Pascoe was asked to make a "prosecutorial decision." The letter then states, "[D]uring the past ten months, there has been considerable discussion back and forth between this office and law enforcement, in which additional questions have been raised. The length of the inquiry has thus necessarily been prolonged by these additional questions." The letter concludes with a reminder that the public must have confidence in the integrity of the criminal process, and that the public should have full disclosure of all redacted information in the SLED report at the earliest appropriate time.
A number of questions are raised by McIntosh's September 17, 2015, letter. Principally, the nature of the Attorney General's Office's ten month "inquiry" is unclear, though exhibits indicate the Attorney General's Office may have been conducting a separate investigation related to information contained in the Harrell SLED report, but unrelated to the redacted legislators matter.
On September 25, 2015, Pascoe responded by letter to McIntosh, writing:
On September 27, 2015, Cook emailed Pascoe. In that email, Cook stated he was "stunned" at the contents of Pascoe's September 25, 2015, letter to McIntosh. Cook then stated:
Cook concluded, "I don't know how I or we were interfering with your investigation or decision.... I am offended that you think I would interfere in your case" (emphasis supplied).
From this exchange, it appears the common understanding was that Pascoe had full control of the redacted legislators matter to the exclusion of the Attorney General's Office. 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. Protecting "the integrity of the process" appears to be Cook's justification for communicating with the attorney representing one of the redacted legislators.
On September 30, 2015, McIntosh wrote Pascoe a letter stating there was no basis for suggesting the Attorney General's Office was "interfering with [Pascoe's] investigation" (emphasis supplied), and further asserting:
This exhibit represents the first instance anyone in the Attorney General's Office "take[s] exception" to the unequivocal representations made in the July 2015, correspondence that the Attorney General's Office was recused due to a conflict of interest. While the September 30, 2015, letter denies the assertion that the Attorney General's Office has a "very clear" conflict of interest, McIntosh seems to base this on his personal lack of an actual conflict. Further, the letter does not state that the Attorney General's Office is not recused. Moreover, the letter goes on to state the entire case had been assigned to Pascoe for "handling as [he] deem[ed] appropriate."
By October 21, 2015, the tension appears to have dissipated as evidenced by an email from Pascoe to Cook. In the email, Pascoe referenced a meeting he had that day with McIntosh and Cook, and stated, "I am very grateful that you recommended we sit down and discuss our issues. As it turns out, we have no `issues' and we are on the same page. ..." Nothing in the email or subsequent communications indicate what was discussed at the meeting, or what the mutual understanding entailed. The email further requested advisory opinions
In February 2016, having determined in conjunction with Pascoe that a state grand jury investigation into the redacted legislators matter was necessary, Chief Keel sent a SLED agent to the Attorney General's Office to obtain templates for a state grand jury initiation from SLED Lieutenant Pete Logan ("Lt. Logan"), whose office was located within the state grand jury division of the Attorney General's Office. According to an affidavit by Robert E. Bogan ("Bogan") — a former prosecutor at the Attorney General's Office and assistant to Pascoe in the investigation of the redacted legislators matter — Bogan called Lt. Logan on or about February 12, 2016, to "get the format of the state grand jury initiation paperwork." Bogan asserts he did not disclose to Lt. Logan the subject of the investigation, only that he was assisting Pascoe. Bogan claims Lt. Logan assumed which investigation Bogan was referencing, and replied that the Attorney General did not think it was an appropriate state grand jury case. It does not appear from the exhibits that the templates were supplied.
In March 2016, Pascoe and Chief Keel signed the authorization to initiate a state grand jury proceeding.
On March 22, 2016, McIntosh and Cook met with Chief Keel and expressed concern as to Pascoe's authority to initiate a state grand jury investigation. According to Chief Keel's affidavit, when he asked McIntosh why neither he nor Pascoe were contacted to discuss these concerns when he sent a SLED agent three weeks earlier to obtain the initiation templates, McIntosh responded he "didn't respond to rumors and didn't know why he should call Solicitor Pascoe."
On March 24, 2016, Parks notified Pascoe via email he would not administer the state grand jury secrecy oath to Pascoe's staff, and would no longer issue subpoenas. In his affidavit, Parks explains he originally cooperated with the state grand jury initiation because he was under the impression the proceeding was authorized based on the language of the initiation memorandum, and Judge Newman's acknowledgment.
On March 25, 2016, Pascoe filed a Petition for a Writ of Mandamus in this Court, asking the Court command Parks: (1) issue the oath of secrecy to Pascoe's staff involved in the state grand jury investigation; (2) issue subpoenas as required; and (3) "perform all other necessary and proper duties required by his office." This Court granted Pascoe's petition for original jurisdiction to address the merits of the mandamus action.
On March 28, 2016, McIntosh sent a letter to Pascoe purportedly terminating all authority delegated to Pascoe "on July 17 and July 24, 2015," because of Pascoe's attempt to "unlawfully" initiate a state grand jury investigation. In his letter, McIntosh stated, "[Y]ou were given full power to prosecute this matter at the local level if you deemed such action to be appropriate. However, rather than seeking explicit authority for a State Grand Jury investigation, you sought to initiate that investigation surreptitiously with respect to this office" (emphasis supplied).
On March 29, 2016, by letter, McIntosh purported to "designate" Fifth Circuit Solicitor Dan Johnson to replace Pascoe, assuring, "The Attorney General has authorized me to say that should you need any investigative tools, including the State Grand Jury, please let me know and you will be given that authority"
On March 30, 2016, Pascoe filed a Petition for Declaratory Relief with this Court, seeking the Court declare: (1) Attorney General Alan Wilson recused himself and his office from the investigation and prosecution of the redacted legislators matter; (2) the recusal was full, final, and irrevocable "leaving no role for [Wilson] or his Office in the matter"; (3) in so doing, Wilson exercised his statutory authority to vest Pascoe with the legal authority to act as the designee of the Attorney General imbued with the powers of that office; (4) Wilson's attempt to direct Clerk Parks in this matter was an ultra vires act; (5) Wilson's attempt to revoke Pascoe's designation in this matter was an ultra vires act; (6) Wilson's attempt to designate Fifth Circuit Solicitor Dan Johnson to investigate and prosecute this matter was an ultra vires act; and (7) Wilson and his office must cease and desist from any further involvement in this matter and act in strict accordance with the Court's judgment concerning the law of recusal. We granted Pascoe's petition for original jurisdiction to address the merits of the declaratory judgment action.
As mentioned supra, because these cases are being heard in the Court's original jurisdiction, the Court sits as both the finder of fact and finder of law.
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.
Pascoe has the burden of proving his cases by a preponderance of the evidence. See Vermont Mut. Ins. Co., 316 S.C. at 10, 446 S.E.2d at 421 (citing Martin v. Cantrell, 225 S.C. 140, 81 S.E.2d 37 (1954) (declaratory judgment)); 55 C.J.S. Mandamus § 405 (2016) (mandamus). A preponderance of the evidence is evidence which convinces the fact finder as to its truth. Gorecki v. Gorecki, 387 S.C. 626, 633, 693 S.E.2d 419, 422 (Ct. App. 2010) (citation omitted).
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.
Article 15 of Chapter 7 of Title 14 of the South Carolina Code contains the State Grand Jury Act. S.C. Code Ann. § 14-7-1600 (Supps. 2014 & 2015). Regarding the October 2014, Wilson recusal and subsequent transfer of authority to McIntosh, the version of the State Grand Jury Act effective at that time addressed only the Attorney General's "disqualification"
The Wilson recusal and transfer of authority to McIntosh occurred outside the context of a state grand jury proceeding, and, therefore, it occurred outside of the State Grand Jury Act.
Likewise, we find the transfer of authority from McIntosh to Pascoe was not governed by the State Grand Jury Act. The applicable version of § 14-7-1650,
This statute, like the version effective in October 2014, addresses a circumstance in which there is an ongoing state grand jury proceeding. Accordingly, we hold the October 2, 2014, transfer of authority to McIntosh, and the July 17, and 24, 2015, transfer of authority to Pascoe, are not governed by any provision of the State Grand Jury Act.
The initial correspondence from the Attorney General's Office to both Pascoe and Chief Keel in July 2015, stated, without reservation, that the Attorney General's Office was recused from the redacted legislators investigation, leaving only Pascoe as the state's highest prosecutor in that matter.
We further find of critical importance the fact that Chief Keel, a neutral witness, expressed in his affidavit his understanding was that since July 2015, the entire Attorney General's Office was recused from any further involvement in the investigation of the redacted legislators. Chief Keel states that he had no contact or communication with the Attorney General's Office regarding the redacted legislators matter after July 17, 2015. Chief Keel's affidavit further provides he worked exclusively with Pascoe on the investigation, and when the need for a state grand jury proceeding became apparent, he and Pascoe reviewed "letters and correspondences," [sic] and agreed initiation of a state grand jury was authorized by the July 17, 2015, letter.
Further, prior to concerns being raised by individuals at the Attorney General's Office, Judge Newman and Clerk Parks accepted that Pascoe had the authority to act as the Attorney General in initiating the state grand jury investigation. Parks' affidavit to this Court states he swore Pascoe into the state grand jury investigation in the presence of Judge Newman, and signed subpoenas at Pascoe's request, as he was "under the impression that the investigation was authorized." Parks' affidavit explains that approximately one week later, on March 24, 2016, he sent a communication to Pascoe copying Judge
We find Pascoe has proven by a preponderance of the evidence that the Attorney General's Office in its entirety was recused from the redacted legislators investigation, and Pascoe was vested with the full authority to act as the Attorney General for the purpose of the investigation.
Wilson contends, however, that only the elected Attorney General may lawfully sign the authorization for a state grand jury investigation.
South Carolina Code Ann. § 14-7-1630(B) (Supp. 2015),
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
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 Assembly).
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
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. See, e.g., Ex parte Harrell, 409 S.C. at 70-71, 760 S.E.2d at 813 ("Relevant to this case, the subject matter jurisdiction of a state grand jury covers `a crime, statutory, common law or other, involving public corruption as defined in [s]ection 14-7-1615, a crime, statutory, common law or other, arising out of or in connection with a crime involving public corruption ..., and any attempt, aiding, abetting, solicitation, or conspiracy to commit a crime, statutory, common law or other, involving public corruption....'" (citing S.C. Code Ann. § 14-7-1630(A)(3) (Supp. 2013))); see also § 14-7-1630(B) (requiring the individual seeking authorization of the state grand jury investigation "allege the type of offenses to be inquired into and, in the case of [certain offenses], must allege that these offense may be of a multicounty nature or have transpired or are transpiring or have significance in more than one county of the State.").
As evidenced by the statute itself, a state grand jury proceeding is an investigatory tool which we find is available to the Attorney General or his designee vested with the authority over an investigation within the subject matter jurisdiction of the Act. See § 14-7-1630(B) (stating authorization of a state grand jury is proper where a state grand jury is necessary "to enhance the effectiveness of investigative or prosecutorial procedures" (emphasis supplied)); see also The Perils of Parallel Civil and Criminal Proceedings: A Primer, 10 No. 4 HEALTH LAW., 1, 4 (1998) ("One of the government's most powerful investigatory tools is the grand jury"); cf. United States v. Sells Eng'g, Inc., 463 U.S. 418, 419, 103 S.Ct. 3133, 77 L.Ed.2d 743 (1983) (noting the concern of tempting
We conclude the General Assembly intended that the individual acting with the authority of the Attorney General may lawfully seek to impanel a state grand jury. See Cnty. of Florence, 406 S.C. at 173, 749 S.E.2d at 518; Kiriakides, Inc., 312 S.C. at 275, 440 S.E.2d at 366; cf. Matter of Special Sept. 1978 Grand Jury (II), 590 F.2d 245 (7th Cir. 1979).
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.
As to Pascoe's mandamus action, as noted supra, our rulings in the declaratory judgment action clarify the roles of the parties involved. Therefore, we need not issue a writ of mandamus.
The Declaratory Judgment is therefore
BEATTY, KITTREDGE and HEARN, JJ., concur. FEW, J., dissenting in a separate opinion.
JUSTICE FEW:
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. Rather, I would instruct the presiding judge of the circuit court to answer this
South Carolina Code section 1-7-380 (2005) provides, "The several solicitors of the State shall not engage in litigation against the State or any of its departments." David M. Pascoe is a "solicitor," this is "litigation," and Pascoe "engaged" in it "against the State" by suing the Attorney General in this Court's original jurisdiction. Pursuant to the plain language of section 1-7-380, I would dismiss the action. The result of that dismissal would bring these issues before the presiding judge of the circuit court.
Article V, section 24 of the Constitution of South Carolina provides, "The Attorney General shall be the chief prosecuting officer of the State with authority to supervise the prosecution of all criminal cases in courts of record." In my opinion, "the chief prosecuting officer of the State with authority to supervise the prosecution of all criminal cases" has the power to remove an appointed prosecutor — even one to whom he had previously given complete discretion for the prosecution. This constitutional authority should be subject only to (1) an express and unmistakable recusal of the office by the Attorney General himself — not by his assistants — with specific relinquishment of his article V, section 24 supervisory responsibility, or (2) the disqualification of the Attorney General by order of the court based on the Attorney General's concession or the court's finding of an actual conflict of interest.
The words written by the Attorney General and his assistants in the various emails and letters may be clear, but what
Second, the majority places too much emphasis on the fact that the Attorney General gave Pascoe complete authority to prosecute the case. This is an important fact, and I agree with the majority that he did it. However, this fact does not negate the Attorney General's supervisory responsibility under article V, section 24 of the constitution. The Attorney General's power to assign solicitors to prosecute cases derives from statute. See, e.g., S.C. Code Ann. 1-7-50 (2005) (stating the Attorney General must defend "any officer or employee of the State" and "[s]uch appearance may be by ... any solicitor ... when directed to do so by the Attorney General."); S.C. Code Ann. 1-7-320 (2005) ("Solicitors shall perform the duty of the Attorney General ... whenever they shall be ... required to do so; and they shall assist the Attorney General ... in all suits of prosecution in behalf of this State when ... called upon by the Attorney General."); S.C. Code Ann. 1-7-350 (2005) ("The several solicitors of the State shall, ... as assigned by the Attorney General, represent in all matters,... [and] ... they shall be subject to the call of the Attorney General, who shall have the exclusive right, in his discretion, to so assign them in case of the incapacity of the local solicitor or otherwise.").
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.
Third, the majority finds the Attorney General "unequivocally recused himself," and McIntosh and Waters made "unequivocal representations ... in the July 2015 correspondence"
I will summarize some of the evidence to illustrate my point. On October 2, 2014, the Attorney General wrote an email to McIntosh stating, "Please ensure that I am firewalled from any involvement in that specific instance" and "I want you to take over as supervising prosecutor." In this email, the Attorney General placed McIntosh in charge of the case, thus intentionally keeping the office of the Attorney General involved in the investigation and prosecution. As the majority finds, "McIntosh accepted the designation as supervising prosecutor." The record before us does not contain any evidence of other action regarding recusal taken by the Attorney General himself after the October 2 email, and McIntosh appears to explain in an affidavit that the October 2 email was the only communication he received from the Attorney General on the subject. Everything else relied on by the majority for its finding that the entire office was recused consists only of actions taken by McIntosh, Cook, or Waters. In particular, the July 2015 correspondence came from McIntosh and Waters — not directly from the Attorney General.
In addition, the July 2015 correspondence is internally inconsistent as to whether the office was recused. McIntosh's July 17 letter was written to Chief Keel referencing what appears to be a follow-up investigation of persons mentioned in the SLED report. Despite the "recused this office" statement, McIntosh "request[ed] that, upon completion of the investigation of those persons, the report be forwarded" to Pascoe. The action of directing the future delivery of an uncompleted report is inconsistent with the office being recused.
Further, McIntosh, Cook, and Waters continued their involvement in the case long after July. McIntosh wrote Pascoe on September 17, 2015 describing "considerable discussion" between the Attorney General's office and law enforcement. Apparently exercising the "supervising prosecutor" authority the Attorney General gave him in October 2014, McIntosh admonished Pascoe "the public must have every confidence that the integrity of the criminal process is protected." On September 27, 2015, Cook emailed Pascoe stating, "The [Attorney General], as Chief Prosecutor, always retains authority over that integrity of a criminal investigation even in a matter in which he is not involved." On September 30, 2015, McIntosh wrote a letter to Pascoe in which he denied the office has a conflict of interest and offered to "assist you any way possible
Pascoe accepted the involvement of the Attorney General's office after the July 2015 correspondence. For example, Pascoe emailed Creighton Waters on July 27, 2015 stating, "I will... call later today or in the morning for some clarification." On September 15, 2015, Pascoe emailed Cook asking if the Attorney General's office ever dealt with a legal issue Pascoe faced in his investigation of the redacted portions of the SLED report. There is considerable email correspondence between Pascoe and Cook in September, much of which is arguably unrelated to the investigation. On October 21 and 23, 2015, however, Pascoe wrote Cook and officially requested two advisory opinions on matters related directly to the investigation.
Finally, Pascoe wrote McIntosh on September 25, 2015 and stated "it is imperative that the Attorney General's Office recuse itself," indicating Pascoe did not believe the office had already done so. These facts and others are inconsistent with a finding that the Attorney General and McIntosh intentionally and unequivocally relinquished the duty to supervise this case under article V, section 24 of the constitution.
In my opinion, the lack of action by the Attorney General himself in recusing the office, the confusion as to whether the July 2015 correspondence was in fact a recusal of the office, and the subsequent behavior of those involved indicating they did not think so are critical to the analysis of whether the Attorney General retained or relinquished his constitutional
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.
