Will Manning Make Free Throw or Choke at Judicial Foul Line?
“The opportunity to do what you really think is the right thing to do is great… It’s the ability to do what’s fair and just.”
– Judge Casey Manning, My Carolina Alumni Association article (March 2010)
When it comes to politicians and power, we’re about to find out what he meant by that.
In recent weeks, doubters ranging from the journalistic establishment (Cindy Ross Scoppe, associate editor of The State) to the journalistic jihad (Will Folks, editor of FITSNews) have put Judge Manning under the microscope in relation to the hearing involving House Speaker Bobby Harrell’s attempt to block Attorney General Alan Wilson’s investigation of him. But I find no fault with the judge’s conduct in the case to date or in his comments following the fiery court proceedings.
To wit, in declining to issue an immediate ruling on whether the attorney general and state grand jury can be stopped from investigating alleged criminal misconduct by the House Speaker, Manning said: “This decision is too important to shoot from the hip.” Now who can argue with that?
But after an appropriate period of research and reflection, the question is whether Manning will make the legal free throw or choke at the judicial foul line. In terms of the law, this case does not seem like a close call. Though I am not an attorney, I can read. So can you, and here’s what the State Constitution has to say about the role of the attorney general, Article 5, Section 24:
“The Attorney General shall be the chief prosecuting officer of the State with the authority to supervise the prosecution of all criminal cases in courts of record.”
Note that the constitution gives the AG that power in “all criminal cases,” not “some criminal cases” or “criminal cases not involving legislators,” etc.
Further, the S.C. Supreme Court has weighed in clearly on this issue. In the 1994 State v. Thrift case, the court ruled unanimously (in an opinion written by then associate justice and now Chief Justice Jean Toal) that both the constitution and the statutes “place the unfettered discretion to prosecute solely in the prosecutor’s hands.”
Again, note the definitive wording, giving the prosecutor the “unfettered discretion” to bring charges, not “limited discretion” or “discretion except for cases involving legislators,” etc.
As if speaking directly to Manning 20 years in the future, Toal added: “The Judicial Branch is not empowered to infringe on the exercise of this prosecutorial discretion.”
Accordingly, Manning’s decision boils down to whether we will have a government of laws or a government of politicians. Harrell’s attorneys say it is the latter, suggesting that only legislative committees can investigate and punish legislators or refer their ethics cases to court, even when serious criminal violations are alleged. The mind boggles.
Which is not to say Harrell is guilty of anything. This is about whether he will be treated like any other citizen in terms of the judicial process, not whether he has done anything wrong. The decision before Manning is one of process, not outcome.
Should the investigation go forward and Harrell be charged, he and his very able and experienced attorneys will no doubt mount a vigorous defense. But if it comes to that, the decision on his guilt or innocence should be rendered in a courtroom, not a committee room — and by a jury of his peers, not a jury of his pals.
Three former attorneys general (Democrat Travis Medlock and Republicans Charlie Condon and Henry McMaster) appeared in court to support Wilson’s position. They said blocking the attorney general’s investigation would “make politicians a special protected class,” adding “no one should be above the law.”
Which brings us back to Judge Manning. We’re about to find out how the man who first made his name on the University of South Carolina basketball court will now leave his name in the S.C. circuit court. That name shines in the former; hopefully, it will in the latter as well.
It’s a free throw, Casey. Sink it. Nothing but net.
Fisher is president of Fisher Communications, a Columbia advertising and public relations firm. He is active in local issues involving the arts, conservation, business and politics