Commentary: Sanford's ethics case has many unanswered questions

The 37 ethics charges against Gov. Mark Sanford are not equal. Even within each of the three categories of alleged violations — flying business class instead of coach on state business, using campaign funds to pay for personal expenses and using the state plane for personal and political trips — there are significant differences in just how serious each charge is, and in how clear the case is (or isn't) against him.

That's important because none of the charges by itself is so serious that it warrants criminal charges, which means the question is whether the sum total of the charges is enough to demand — or even justify — bringing criminal charges against a sitting governor.

I'm not suggesting that the charges are not serious. They are, to varying degrees. But we have a civil process to handle violations of this sort, through the State Ethics Commission. That process is continuing, as it should, and it's hard to imagine that it will not end with a ruling that the governor violated state law in some of those instances, and the assessment of relatively minor fines.

You'll note that I'm not talking about whether these charges merit impeachment. Like House Speaker Bobby Harrell and what appears to be significantly more than the third of the House that would be necessary to block an impeachment resolution, I simply do not believe that they do — at least not at this point. One thing the governor's attorneys are right about is that impeachment is not to be taken lightly, that you don't enter into it just because you don't like someone or you don't approve of his politics or his personal behavior. It is literally overturning the vote of the people, which I believe demands a much higher standard than the very high standard that is necessary to bring criminal charges.

If, however, a prosecutor can make a credible case to the public that the governor should be prosecuted, and then convince a jury to find him guilty either of individual charges or of an overarching charge that all those actions taken together constitute misconduct in office, then this might well become an impeachable offense. But we're nowhere near that point right now, and I have my doubts that we will get to that point, so let's just consider the case for and against criminal charges. Or perhaps I should say let's consider how to consider the case for and against criminal charges.

Although I am insulted by the incessant claims by Mr. Sanford's attorney that there's nothing here but a smattering of "technical" violations, the charges that the governor improperly flew business class instead of coach on nearly two dozen trips and that he used campaign cash inappropriately in fewer than a dozen instances come close.

There's nothing to suggest that the governor knew or even imagined that he was violating the airline tickets law, which is a little silly anyway when applied to a governor, though that's another story. I find it perfectly believable that he counted on his staff and the Commerce Department staff to make legal flight arrangements for him, and I think he should have been able to rely on them.

The question of how campaign cash can be used is murky at best. In a state where House members have used campaign cash to purchase inaugural gowns and senators have bought new tires out of their campaign accounts, I can't think of anything that would have tipped off the governor that he couldn't use campaign donations to buy a ticket to the presidential inaugural, and I can't think of anything that would have prohibited him from using those donations to pay for a trip to a Republican Governors Association meeting.

The use of the state plane for personal or political trips is a different matter entirely. As a constitutional law expert reminded me Tuesday, it's no secret that politicians aren't supposed to use state aircraft as personal taxies. While I don't think we've had any criminal prosecutions, personal and political use of state planes has frequently generated extensive news coverage, which explained among other things that the practice is illegal.

I don't think Mr. Sanford crossed the line in all nine instances alleged by the Ethics Commission. While a bit of a stretch, for instance, I think he could justify his flight to Greenville for a reception of the House Republican Caucus. Yes, that's a "political" event, for which you're not supposed to use the state plane. But it's also an event hosted by the people who decide what parts of Mr. Sanford's agenda become law, and which don't; it's hard to argue trying to influence those people is not part of his job.

But attending a birthday party for a campaign donor or going on vacation to the Georgia coast is a different matter. The governor's explanation that he would have had to cancel his vacation if the state plane had taken him back to Columbia from a Governors Association meeting instead of to Brunswick doesn't wash. Maybe our law ought to allow such diversions, but it doesn't. That seems to me like a clear-cut violation. The other eight fall somewhere on the spectrum between the family vacation and the House Republican Caucus reception.

So if we focus in on the state plane allegations, the first question we have to answer is how many of those other seven flights seem to be on the wrong side of the law, and just how clearly so. A prosecutor, after all, needs to be convinced not only that someone broke the law but also that he can win a conviction.

The next question is how many of these violations would be enough to merit prosecution against any public official. Two? Five? Seven?

And assuming the governor passes that threshold, we get to the really difficult question: Should that same standard apply to the governor? That question demands that we consider not just Mr. Sanford but the best interests of the state.

At this point, I don't know how to answer any of the questions. All I can say for sure is that we can't ignore these questions — and that there really are no good answers.

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