Q&A: Consider primaries for attorney general nominees, Vargo says

Attorney General Mark Vargo said the state should consider a new method of choosing political nominees for the office he holds.

“I will say that I do think it would be smart to consider whether or not that nomination process should be through a convention or through a primary,” Vargo said.

Currently, delegates at political party conventions nominate the candidates for the state’s top law enforcement job. Meanwhile, voters in primary elections choose nominees for some other statewide offices, including the governor and the state’s three congressional seats.

Vargo’s predecessor, Jason Ravnsborg, caused some consternation in political and legal circles when delegates nominated him at the 2018 state Republican convention. Ravnsborg’s critics labeled him as too inexperienced for the job, in part because he had allegedly never taken a criminal case to trial as a prosecutor.

Ravnsborg won the 2018 general election. Then, earlier this year, the state House impeached him and the state Senate removed him from office for his conduct during and after a 2020 traffic accident. Ravnsborg was driving a car that struck and killed a pedestrian.

Vargo took a leave of absence as Pennington County state’s attorney in June when Gov. Kristi Noem appointed him to serve the remainder of Ravnsborg’s term. Vargo is not running for his own term as attorney general. When he finishes Ravnsborg’s term in January, Vargo will resume serving as Pennington County state’s attorney. He’ll hand over the Office of Attorney General to fellow Republican Marty Jackley, who held the office before Ravnsborg and is unopposed in the Nov. 8 general election.

Following are excerpts – edited for length – from South Dakota Searchlight’s recent interview with Vargo.

Q. What was the mood of the Office of Attorney General when you took over after the impeachment and removal of your predecessor?

A. I would say that it was certainly very apprehensive. There are a lot of people here that didn’t know me, but I also think that under the previous administration there was a great reluctance to be innovative or to take initiative, because of a fear of repercussions. And it appears that there was mostly a top-down management style, and a top-down management style from people with not a great deal of experience, which is a really bad combination.

Q. What’s an example of that?

A. There are extremely experienced people running the Criminal Division, and as a guy who supervises felony attorneys, I certainly want to be apprised of what’s going on in major cases, and I may talk through those cases with somebody. But it is very rare for me to substitute my judgment for their own when it comes to what the disposition of a case ought to be.

The people that are directly involved have much more knowledge of the circumstances of the case. They usually have a personal relationship with a victim’s family or a victim. And while I expect that I’m the one that’s going to have to answer press inquiries if something happens, I largely let my people make decisions, and I think that was very much not happening at times here.

Q. You recused yourself from an investigation into Gov. Noem’s use of state airplanes. Why?

A. I would say mostly I wanted to avoid the appearance of impropriety. I feel fairly comfortable that I could have judged this impartially, but I also know that no matter how comfortable I am, nobody outside of the system would necessarily feel comfortable about that.

I have proven over 30-plus years of prosecutions that I’m willing to make unpopular decisions, and I think if the evidence demanded it, I could have made an unpopular decision in either direction on this one. But given the recency of my appointment and the fact of my appointment [by Gov. Noem], I just felt like part of this is about having the public have confidence in the decision that is made, and that’s the part that I couldn’t magically vouch for myself.

Q. Do you think some officeholders fail to recognize that an appearance of a conflict of interest can be just as problematic as an actual conflict?

A. Absolutely. I think that we have to be cognizant of the fact that just because we know that we’re going to make the right decision, it’s also about the public being able to see that and know that and believe that.

Q. You recently helped law enforcement officials from Pennington County and the Oglala Sioux Tribe come to their first mutual aid agreement. Why is that important, and what’s the intended effect?

A. I think there’s been an effect already, if only that in the process of coming to this decision there was increased discussion and increased cooperation between two law enforcement agencies. I don’t think you can underestimate the value of the personal touch in a state like South Dakota.

And so in creating that memorandum of mutual support, that involved a lot of work by tribal council members, the Law and Order Committee, the tribal president, but also tribal law enforcement, state law enforcement, and the Pennington County State’s Attorney’s Office. All of those entities had to be sitting at the same table, and we were talking about why we needed this. And in so doing, we created relationships that will be invaluable to us in addressing problems.

Q. On a related topic, in 2021, the Legislature directed the attorney general to create a liaison for Missing and Murdered Indigenous Persons. Why didn’t your predecessor fill the position, and what’s the status now?

A. I know very little on why it wasn’t filled, other than the position existed but there was no specific set of funding that went along with it. But as you’re well aware, if you’ve got 10 open positions, your salary line would still cover that spot until, of course, you’ve filled nine of 10 positions, and then you might have to make some calls.

So I don’t know what they were thinking. I do know that when I arrived, the position had not been well advertised, and I believe there were eight resumes in a folder on my desk.

When we reissued that and reached out to some of our tribal partners – people that I know in law enforcement and administrative positions with a variety of tribes – we ended up with 61 applications for that position. We had some amazing people, and we have completed our interviewing process. We are now doing background checks, however, so we haven’t quite filled it.

Q. Election Day is coming up. What preparations are you and your staff making to handle allegations of voter fraud, voter suppression, harassment of poll workers, etc.?

A. We make sure that we have an experienced person available and kind of tied to the desk during Election Day, so if there are any immediate questions that have to be answered, we’re available for consultation.

I would anticipate some of the things that you talked about might more frequently end up being referred to a state’s attorney, because I will tell you that I have not taken an Election Day off in nine years because of that. So as a state’s attorney, I always tried to be available to my county auditor for any immediate questions that needed to happen, or if there was a question about whether somebody should be arrested, sometimes law enforcement would consult me.

And so we are available to the secretary of state and to individual state’s attorneys that ask questions to us, but I will tell you, in my position as Pennington County state’s attorney, I believe that in the 10 years that I have served there thus far, I bet it would be fewer than the fingers on one hand in terms of the number of complaints that we had or cases that we actually filed.

Q. There have been a lot of changes in hemp and marijuana laws in recent years, resulting in some public confusion about what’s legal and what’s illegal. How do you approach the enforcement of those laws?

A. Some of the complications when the hemp statute was passed were proving that a given quantity of marijuana was in fact marijuana and not hemp, and that’s where the 0.3 percent THC number came in [THC is Tetrahydrocannabinol, the main psychoactive compound in marijuana]. But now we have the capacity to do some testing to that effect.

But the medical marijuana statutes also have – and I testified to this last year in front of the Legislature – they have some poison pills that were placed there by the marijuana industry, the after-the-fact medical exception being primary among them. Somebody who does not have a medicinal marijuana card can come into court and say, “Well, I have since then found a doctor who says I should have had a medical marijuana card,” and that is a complete defense to the possession of marijuana. And I just think that’s absurd, and it renders your prosecution basically toothless.

And so that was one that the Legislature took under consideration last year to fix that, to eliminate that after-the-fact medical exception, and they chose not to do so. That’s been one of the major concerns that we’ve had at the state’s attorney’s office and then here at the attorney general’s office as far as the capacity to prosecute marijuana.

Q. You have more than 30 years of experience in criminal justice at the local, state and federal levels. What advice do you have for law enforcement officials who’ve expressed concerns about rising levels of violence across the state?

A. We have under-committed to a wide range of community problems ranging from alcoholism to domestic violence, drug addiction, homelessness, and mental illness, and the answer seems to be, “Well, when they get in trouble, we’ll have the cops arrest them.” That’s not an acceptable response anymore. We can’t just leave all of those questions to law enforcement. It is not their area of expertise. And too frequently, by the time they become involved, we have a victim. We should really be addressing these questions long before there’s a victim.

And so we need to start looking at these as things that our communities need to solve, because it’s not even just government. It needs to start before we get to government. Our churches and our communities need to be wrapping their heads around this problem, embracing those who are at risk and trying to assist them in getting out of the circumstances that end up leading them into criminal situations.

Our diversion programming [in Pennington and some other counties, where prosecutors can offer a range of alternatives to prosecution in some cases] is a very small example of that; the idea that we take people who are just at the very beginning of a criminal career – they have been arrested, so they are in the system – but we offer them a chance to change their behaviors. They don’t necessarily want to live the way they’re living. They just don’t have another way out of it, so we can do things to get people out of there.

That is one of the most important things that we can do, and it is pretty clear to me that unless we want to just continue to spiral downward, we need to take up that mantle. We need to decide as a community, as government agencies, long before we get to law enforcement, and then even as law enforcement and prosecutors, how can we do things differently so that we change behaviors more effectively?