Senate President Pro Tempore Lee Schoenbeck (R-5/Lake Kampeska) yesterday announced that Pennington County State’s Attorney Mark Vargo will serve as chief prosecutor and Clay County State’s Attorney Alexis Tracy will serve as assistant prosecutor in the Senate impeachment trial of killer Attorney General Jason Ravnsborg:
Schoenbeck set the trial for June 21-22. He said Pennington County prosecutor Mark Vargo will argue in favor of the two articles of impeachment — one for crimes that led to the death of Joe Boever and the other for malfeasance in office. Clay County State’s Attorney Alexis Tracy will assist in the prosecution.
…Vargo was part of the original team of state’s attorneys that Hyde County Deputy State’s Attorney Emily Sovell used in determining what criminal charges should be brought. Although he left the group before Ravnsborg was charged with three misdemeanors, Schoenbeck said Vargo has a firm grasp of the evidence.
Vargo said Schoenbeck asked him to oversee the trial.
“It’s a simple as that,” Vargo said. “I did not lobby for it.”
Neither the South Dakota Constitution nor statute spells out who manages the Senate impeachment trial. Both times that the U.S. House impeached Donald Trump, the Speaker of the House selected a team of Representatives to present the case to the Senate. But Speaker of the South Dakota House Spencer Gosch appears not to have gotten a say:
Asked Wednesday about the Senate’s decision to have Vargo and Tracy make the case, Gosch said, “Who they choose for their prosecutor is totally up to them. The House and Senate processes are different and it’s completely inappropriate for me as the presiding officer of the other chamber to weigh in in any way on what they decide to do as a body” [Bob Mercer, “Senate Trial of Ravnsborg Is Set for June,” KELO-TV, 2022.04.13].
It’s not every day that the jury gets to choose the prosecuting attorney. And the Senate as a body did not decide on Vargo and Tracy. The Senate did not meet in Pierre on Tuesday during the secret House Republican caucus and the House impeachment proceeding. Senator Schoenbeck appears to have made this decision on his own.
Gosch said he thought it would have been inappropriate for Vargo to be involved in his committee’s investigation given his involvement in Ravnsborg’s prosecution, though he noted the roles of the Senate and House differ when it comes to the impeachment process.
“I just don’t think Vargo is unbiased,” said Gosch, a Republican from Glenham.
Vargo said he’s unfamiliar with any ethical or political standard that would preclude him from prosecuting the case just because he knows so much about it.
“If there’s something specific he’s citing, I’d be interested in hearing that,” he said [Jonathan Ellis and Joe Sneve, “Senate Picks Prosecutors, Date for South Dakota AG Jason Ravnsborg’s Impeachment Trial,” Sioux Falls Argus Leader, 2022.04.13].
“Marty’s return to the Attorney General’s office would mean exactly what it always has…hard work, integrity, and old-fashioned South Dakota leadership by example,” Vargo said in a statement. “I am thrilled to see him come back as a partner because he embodies the professionalism and values that South Dakota deserves from its Attorney General” [Joe Sneve, “Prosecutors Don’t Want South Dakota Attorney General Jason Ravnsborg Back for 2nd Term,” Sioux Falls Argus Leader, 2021.03.23].
Clay County State’s Attorney Alexis Tracy said, “Marty’s proven experience and record as Attorney General, United States Attorney, and as a State’s Attorney is why he has my full support to be our next Attorney General” [Jody Heemstra, “Jackley to Run for Attorney General in 2022,” DRG News, 2021.03.02].
But since when are prosecutors supposed to be unbiased? Jason Ravnsborg certainly won’t send as his defense an attorney who says, “Maybe you should remove Jason from office, maybe you shouldn’t—who am I to say?”
I have not met Tracy or blogged about her work. I have blogged about Vargo’s lawyering. He arouses animus from American Indians for his prosecution of NDN Collective leader Nick Tilsen. But Vargo has worked with the Oglala Sioux Tribe to help pregnant Native women with drug problems… and Vargo’s record on Indian relations should have no bearing on the prosecution of Jason Ravnsborg, who broke white man’s laws, killed a white man, and lied to white cops about his crime.
Vargo has butted heads with Ravnsborg publicly, questioning Ravnsborg’s reading of marijuana laws and declining to follow Ravnsborg’s recommendation that state’s attorneys prosecute individuals for possession of CBD oil.
To make clear my own bias, I met Vargo when he was coaching the Rapid City Stevens High School debate team. I coached high school speech for several years and have judged debate and related events since 1989. Vargo, like most of the debate coaches I know, has a sharp intellect and a keen appreciation for logic, evidence, and language. As a dedicated advocate of the debatocracy—a society run by philosopher kings who have participated in high school debate—I express my total confidence in Mark Vargo’s ability to argue intelligently, honestly, and passionately for Ravnsborg’s removal.
And if there is any persuading to be done—if Senate Republicans are not already conducting a secret caucus via telephone and email; if they do not walk into the Senate Chamber on June 21 with their minds already made up, either by themselves or by their President Pro Tempore—Mark Vargo is the right attorney to persuade them. Like two-thirds of the Senate (yes, 24, exactly the number needed to convict Ravnsborg), Vargo is a white male Republican, conservative but, like the Senate as a whole, not as radically right-wing as the House. Sending a Democratic lawyer like Ravnsborg’s 2018 challenger Randy Seiler or Representative Ryan Cwach (D-18/Yankton) to prosecute this Republican menace would have triggered too many political sensitivities. Sending prime impeachment sponsor Republican Representative Will Mortenson (R-24/Pierre) or any other Republican running for reëlection this year would have felt too uncomfortably political for a South Dakota Republican Party trying to keep its house together. Vargo, a Republican but not a high-rolling partisan operative, gives the Senators some insulation from partisan considerations.
Plus, no matter what a worthless piece of refuse Jason Ravnsborg is, the tight vote to impeach in the House demonstrates that prosecuting the Attorney General is not a job anyone seeking to climb the SDGOP ladder would dare take. Vargo is not a ladder climber. I don’t believe Vargo has endorsed Marty Jackley because he’s looking for a promotion to the chief of staff position that Ravnsborg created for his crony Tim Bormann; I believe Vargo has endorsed Jackley because he recognizes as clearly as I do that Jackley would do a much better job as Attorney General than Ravnsborg has (and is much less likely to kill anyone through inattention). I get the impression—and yes, this is just an impression drenched in my own bias, possibly just wishful thinking, but also, possibly, a reason bigger than our shared love of debate for my respect for Vargo—that Mark Vargo is his own man, a lawyer who will make the case for what is legal, right, and true regardless of any political consequences. If Vargo can make that same impression on Senators, they may be more receptive to the call to convict.
Vargo is just the right combination of political familiarity and political independence to make an effective case to the South Dakota Senate without sweating whether it will affect his chance of winning the next state’s attorney election or getting a choice speaking spot at the next Lincoln Day Dinner.
And, if in the nine and a half weeks Schoenbeck has delayed this trial, if Ravnsborg does not finally get the hint that his goose is cooked and resign, Vargo will provide a vigorous prosecution that will rivet Senators’ attention and maximize the chances that the Senate will remove this stain from the Attorney General’s office.