Legal News

Does Mark Sanford Face Legal Trouble?

By Ashby Jones

So earlier today, Mark Sanford, the Republican Governor of South Carolina, gave a pretty bizarre, elliptical set of statements about the last five days of his life. Sanford admitted to being in Argentina with a “dear, dear friend,” with whom he’d been unfaithful to his wife — which helps explain why he didn’t tell her, or the citizens of South Carolina, where he was going. Click here for the WSJ story on the news conference; here for coverage from the State, South Carolina’s largest newspaper.

Granted, even prior to his presser, the episode had already earned Sanford some political heat. Now that it’s been revealed that both marital infidelity and perhaps some purposeful obfuscation was involved, things could get even hairier for Sanford. Already, he’s resigned his post as chair of the Republican Governors Association.

But does Sanford stand to get in any legal trouble over the situation? On this question, we thought it wise to turn to an expert on the topic. So we got William Cook, a constitutional law professor at Charleston School of Law in Charleston, S.C., (one of only two law schools in the Palmetto State), on the phone to quell our curiosity.

Our chat went down like this:

Hi William. Thanks for taking the time. We’re not exactly sure where to start, so we’ll just throw the question your way: Are there any potential legal issues confronting Sanford?

It’s hard to say, but I don’t think so. Our state constitution is largely silent on this issue — whether and under what circumstances the governor can travel inside or outside our state. It just doesn’t speak to it. Nor does the constitution include any provisions that require the governor to notify anyone before, say, he leaves the state or the country. So I think that for the most part, the consequences appear to be political, not legal.

And just to be clear — it’s the state constitution that governs the rights, responsibilities and duties of the governor, right?

That’s right. That’s the document. To the extent the state legislature would want to change any of these rights, responsibilities or duties, it would have to amend the state constitution.

If we were to look at the state constitution, where would we look?

You’d probably start by looking at Article IV, Section 11. It says that “In the case of the removal of the Governor from office by impeachment, death, resignation, disqualification, disability or removal from the State, the Lieutenant Governor shall be Governor.”

Later in that same section, it reads: “In the case of the temporary disability of the Governor and in the event of a temporary absence of the Governor from the State, the Lieutenant Governor shall have full authority to act in an emergency.”

What do you make of this?

It’s hard to know. I’m not aware that the relevant clauses here — “removal from the State,” “temporary absence,” “temporary disability,” and “emergency” — have been interpreted at length by the state courts.

All I’m aware of is an opinion from the 1970s issued by the state’s attorney general in which he made clear that the lieutenant governor has the authority to determine when a state emergency exists.

Of course, that issue is moot here, as Stanford’s returned. But let’s just say for argument’s sake that he was still MIA and that the lieutenant governor started calling the shots. If litigation broke out over this, how would the South Carolina courts interpret these hitherto uninterpreted provisions?

It’s a good question. But when it comes to constitutional interpretation, the first line of attack is typically to apply the plain meaning of the words as it’s though that that’s the best evidence in determining legislative intent. If, after exaining the plain meaning, the answer isn’t clear, the courts might look to additional provisions for guidance, to legislative history and the like.

Makes sense. Well, we suppose we’ve covered it. Thanks for taking the time.

My pleasure.

Full post as published by Law Blog - WSJ.com on June 24, 2009 (boomark / email).