Charges against Pennsylvania Attorney General Kathleen Kane, 2015-2016

Attorney General Kathleen Kane

Former Pennsylvania Attorney General Kathleen Kane (D) was sentenced to between 10 to 23 months in jail and eight years of probation in October 2016 after a jury found her guilty of seven misdemeanors and two felony counts of perjury on August 15, 2016. She was originally indicted on the nine criminal charges of perjury and obstruction on August 6, 2015, and her trial began on August 8, 2016.

On November 26, 2018, the Pennsylvania Supreme Court rejected Kane's appeal, requiring Kane to serve out her sentence.

Kane resigned as attorney general on August 17, 2016.

At the time she was charged, Kane and Ernest Preate Jr. were the only attorneys general in Pennsylvania history to face criminal charges.

Grand jury investigation

On May 29, 2014, after a preliminary investigation, Montgomery County Judge William Carpenter appointed a special prosecutor to investigate an allegation that secret grand jury information had been leaked by someone in Attorney General Kane’s office to the Philadelphia Daily News for an article that was published on June 6, 2014. The article concluded that former state prosecutor Frank G. Fina had mishandled the 2009 investigation of J. Whyatt Mondesire, then head of the Philadelphia chapter of the National Association for the Advancement of Colored People (NAACP), based on information supplied by Kane's office.

Kane acknowledged that her office supplied information to the Daily News, but said she did not approve the release of any material protected by grand jury secrecy laws. She also argued that the investigation was based on partisanship.

Special prosecutor Thomas E. Carluccio conducted an investigation and then presented evidence to a statewide investigating grand jury detailing a connection between Kane’s office and the leaked information, as well as Kane's feud with Fina over the handling of previous state investigations. Judge Carpenter was the supervising judge of the statewide investigating grand jury.

On December 18, 2014, the grand jury issued a presentment, or charging document, to the supervising judge finding reasonable grounds to believe that violations of criminal law had occurred. The judge accepted the presentment, finding probable cause to support the grand jury’s determination and to establish a case against Kane. That same day, Kane filed an action in the Pennsylvania Supreme Court to invalidate the appointment of the special prosecutor and to compel Judge Carpenter to show the authority used to appoint the special prosecutor.

On December 19, 2014, Judge Carpenter issued an order authorizing Montgomery County District Attorney Risa Vetri Ferman to follow the grand jury’s recommendation. Ferman’s office would conduct its own investigation before determining whether to prosecute.

Kane challenges the special prosecutor

On January 9, 2015, Kane filed an emergency application for a stay of presentment. This was a formal request to delay charges until the court ruled on Kane’s action challenging the appointment and authority of the special prosecutor. On January 21, 2015, the state supreme court ordered a hearing to resolve any conflict concerning the special prosecutor’s appointment. The hearing would delay any criminal charges until the special prosecutor question was resolved. Oral arguments took place on March 11, 2015.

On March 31, 2015, the state supreme court issued an opinion concluding the supervising judge of the grand jury acted within his authority in appointing a special prosecutor. Siding with the supervising judge, the majority affirmed a supervising judge’s authority to appoint a special prosecutor when a grand jury may be considering potential criminal conduct by the attorney general and denied Kane’s request to invalidate the special prosecutor’s appointment.

In response to the court's decision, Ferman said her office would continue probing the case until she had enough information to judge whether or not charges "against any individual" were necessary. In July 2015, Kane's attorneys met with attorneys from the Montgomery County DA's office to cooperate with the investigation. Kane's attorney, Lanny J. Davis, raised questions about how media outlets like the Philadelphia Inquirer received information about grand jury proceedings against his client. During a press conference on an unrelated matter, Kane declined to discuss the case, but said she would not resign if she were charged.

Potential penalties for Kane

For Pennsylvania attorneys, grounds for discipline include misconduct in violation of disciplinary rules and conviction of a crime. Counsel for the Disciplinary Board of the Supreme Court of Pennsylvania—the group responsible for the oversight of Pennsylvania attorneys—investigates complaints of misconduct. The disciplinary actions available range from informal reprimand to temporary suspension to disbarment.

Absent action by Ferman, experts were split over whether Kane could be removed or suspended from office in another way. The state's supreme court has the authority to order an emergency temporary suspension of the license of an attorney who is suspected of “egregious conduct," should the disciplinary counsel receive notice that the attorney’s continued practice of law is causing immediate and substantial harm in violation of disciplinary rules.

The suspension of Kane's law license could ultimately have forced her to step down as attorney general because the state's constitution mandates the office holder be a member of the bar of the Supreme Court of Pennsylvania. However, some disputed the constitutionality of the state supreme court taking action to remove an officeholder who was elected. Mark Yochum, a Duquesne University law professor, said it was unlikely the high court would remove someone due to pending charges as opposed to a conviction, considering the vagueness of the term "egregious conduct.”

Charges and trial

On August 6, 2015, Ferman issued criminal charges against Kane, including perjury, obstruction of justice and contempt of court. Kane was required to surrender to authorities by August 8.

During a press conference, Ferman discussed her team's findings: "This investigative team determined Pennsylvania Attorney General Kathleen Kane devised a scheme to secretly leak confidential investigative information from secret grand jury materials directly to political operatives in the hopes of embarrassing and harming former state prosecutors whom she believed -- whom she believed, without evidence -- had made her look bad."

Kane responded to the charges with the following statement:

“	I am very disappointed the district attorney has made the decision to pursue this case. I have maintained my innocence from the day these allegations surfaced and I continue to do so today. I intend to defend myself vigorously against these charges. I look forward to the opportunity to present my case in a public courtroom and move beyond the behind-the-scenes maneuvering that has defined the process to this point. Meanwhile, I remain committed to leading the Office of Attorney General and doing the job the citizens of this Commonwealth elected me to do. A resignation would be an admission of guilt and I'm not guilty. I assure everyone the Office of Attorney General will continue to fulfill its mission to protect and serve the citizens of Pennsylvania.	”

Gov. Tom Wolf (D) called on Kane to step down as attorney general, stating:

“	In this criminal complaint, Attorney General Kathleen Kane was charged with official oppression; she was charged with obstruction of administration of law; she was charged with perjury. These are the charges and there are other serious charges, and they are troubling ... I am calling on her to step aside, step down as attorney general, because I think she cannot do what she has to do as the top law enforcement officer in Pennsylvania while she's facing these serious charges.	”

According to Kane, the charges stemmed in part from her investigation into allegations that various state officials had distributed pornographic and racially offensive email messages. The investigation triggered the suspension and later the resignation of a member of the high court; in October 2014, Justice Seamus McCaffery stepped down in the wake of reports that he had tried to coerce fellow Justice J. Michael Eakin to shield him against charges in the porn scandal.

Ordered to stand trial

Kane surrendered to Montgomery County authorities on August 8, 2015, and was arraigned by Magisterial District Judge Cathleen Kelly Rebar before being released on bail. With her arrest, Kane joined Ernest Preate Jr. as the only attorneys general in the state's history to face criminal charges. Preate resigned in 1995 after pleading guilty to federal charges of accepting illegal contributions.

After Kane's August 24 preliminary hearing, Rebar ordered her to stand trial. Kane was charged with one felony count of perjury and misdemeanor counts of official oppression, obstruction and false swearing. Montgomery County prosecutors filed formal charges on August 27. On October 14, 2015, Kane's attorney, acting on the attorney general's behalf, waived her arraignment and pleaded not guilty.

Additional charges

On Thursday, October 1, 2015, the Montgomery County district attorney charged Kane with an additional count of felony perjury and two additional misdemeanor counts for false swearing and obstruction. The new charges were based on a document found during a search of Kane's Harrisburg offices on September 17. According to the district attorney, the signed document contradicted Kane's claims that she never agreed to maintain secrecy of a 2009 grand jury investigation when she took office in 2013. Kane maintained that the charges were retaliation for her investigation of pornographic emails. Kane's preliminary hearing on the additional charges, originally scheduled for October 15, 2015, was postponed until November 10.

On November 10, 2015, Kane appeared in court for a preliminary hearing on the additional perjury, false swearing, and obstruction charges. Kane's attorney argued that there was no evidence to show that his client remembered signing a grand jury secrecy oath soon after she took office that applied to prior grand juries. Prosecutors countered, arguing that as an attorney, Kane should have known that her November 2014 testimony in which she told grand jurors that she never signed a secrecy oath covering grand juries conducted prior to her January 2013 swearing in was not true. After the hearing, Judge Cathleen Kelly Rebar determined there was enough evidence to proceed to trial. Kane continued to maintain her innocence. Her formal arraignment was set for January 6, 2016.

Lawsuits filed against Kane

Former chief deputy attorney general files lawsuit against Kane

Former Chief Deputy Attorney General James Barker sued Kane in her official and individual capacities for defamation on October 5, 2015, saying he was fired in retaliation for his grand jury testimony that helped prosecutors bring perjury charges against the attorney general. Barker was fired in April 2015 after six years with the office. In the lawsuit, he sought to be restored to his position plus compensation for damages and legal costs.

Kane was initially represented in the lawsuit by Chief Deputy Attorney General Kenneth L. Joel, who entered his appearance on October 23, 2015, and was granted a 30-day extension to respond to Barker's complaint. On November 19, 2015, attorneys Richard Harris, Edward T. Ellis and Rachel Fendell Satinsky of the Philadelphia law firm Littler Mendelson entered their appearance on Kane's behalf. U.S. District Chief Judge Christopher C. Conner of the Middle District of Pennsylvania scheduled a case management conference for December 3, 2015. The suit was ongoing at the time of Kane's August 2016 resignation.

Former prosecutors file federal civil suit against Kane and the Daily Mail

On November 12, 2015, former Pennsylvania Office of the Attorney General investigator Randy Feathers, former prosecutors Richard A. Sheetz Jr., E. Marc Costanzo and Frank Fina, and former State Police Commissioner Frank Noonan filed suit against Kane, Attorney General investigator Michael Miletto, Philadelphia Daily News reporter Christopher Brenna and the Philadelphia Media Network in the United States District Court for the Eastern District of Pennsylvania.

The complaint alleged retaliation, defamation, violation of First Amendment rights, false light, invasion of privacy, and conspiracy connected to Kane's public release of offensive emails involving the plaintiffs and her alleged leak of 2009 grand jury information to the Daily News. The plaintiffs also alleged that Kane abused the powers of her office to intimidate and retaliate against them for exercising their right to free speech in calling attention to Kane's alleged falsehoods and unlawful activities. Kane spokesman Chuck Ardo said in a statement: “The attorney general has not yet had an opportunity to review the suit but will certainly defend herself vigorously against any and all claims made in it.”

On July 20, 2016, U.S. District Judge Harvey Bartle dismissed the lawsuit, ruling that "Fina and Costanzo have failed adequately to allege that Kane unlawfully retaliated against them by criticizing their handling of the Mondesire investigation or by releasing confidential materials related to that investigation." He also dismissed a similar lawsuit filed against the Daily News, and told the plaintiffs to re-file the case in a state court.

Kane agents file lawsuits against her

Michael Carlson and Michael Cranga, two of Kane's agents, filed a federal lawsuit against Kane and a top assistant, Chief of Staff Jonathan Duecker. The lawsuit was filed on December 21, 2015, in the United States District Court for the Middle District of Pennsylvania in Harrisburg. The agents claimed Kane and Duecker violated their First Amendment rights. The lawsuit claimed that the agents had been passed over for promotions and took hits to their reputations because of the way Kane selectively released inappropriate emails involved in the email scandal. The agents claimed Kane had done so in retaliation for their refusal to obey her order "to lie to the grand jury supervising judge and falsely state that they wanted to get an attorney before considering whether to testify."

The lawsuit also claimed that Kane had tried to prevent them from testifying before a Philadelphia grand jury held by Philadelphia's district attorney after he took over a bribery case that Kane had shut down at the state level when she took office in January 2013. They said they had been eager to testify to combat Kane's claims that the bribery case was racist.

The agents claimed that Kane and Duecker had built a human resources department at the attorney general's office that rewarded loyalists and punished enemies. Agents with far fewer years of law enforcement experience, they said, had received promotions over them because of their loyalty to Kane and Duecker.

They claimed Kane and Duecker had sought to harm their reputations by "implicating them in a sensational email scandal," while selectively shielding her sister, a state prosecutor, from similar damage.This was the second lawsuit against Kane in which Duecker was named as a defendant.

On April 4, 2016, Kevin Wevodau, who was the current supervisor of the criminal investigation unit in the attorney general's office, filed a civil lawsuit against Kane in Harrisburg. Wevodau alleged that in retaliation for his testimony against her during grand jury investigations, Kane had not allowed him to return to work following the end of a health-related leave of absence in October 2015. The lawsuit further stated that Kane had pressured Wevodau to resign or "be ruined" prior to taking the leave.

Wevodau was seeking monetary reparations for damages to his reputation; the lawsuit was ongoing at the time of Kane's August 2016 resignation.

Trial

Pre-trial motions

On March 18, 2016, Kane's attorney, Gerald Shargel, moved for a hearing to investigate leaked FBI wiretaps referenced in a February 25 story in The Morning Call. The story claimed that the wiretap had recorded former Kane consultant Josh Morrow speaking of her deliberate plans to release grand jury documents to the Philadelphia Daily News; the wiretaps had been a part of the FBI's 2014 investigation of former Treasurer Rob McCord (D).

In his motion, Shargel demanded that the prosecution shared full contents of the wiretaps with the defense. In addition, the defense requested that the case be heard by a judge from outside of Montgomery County, stating that "[t]hree jurists on this bench … have ties to the investigation and prosecution of this defendant, have been in a posture directly adversarial to this defendant [or have a spouse who has been], and have a clear and demonstrable interest in the case's outcome."

The judge denied the motion on March 29. Kane's trial began on August 8, 2016. On August 1, 2016, Kane's attorneys filed a petition with the Pennsylvania Supreme Court asking it to exercise its "King's Bench power," also known as "extraordinary jurisdiction," which allows the Court to hear any case it chooses. The Supreme Court issued an order on August 5 refusing to consider the petition.

Verdict

On Monday August 15, 2016, the jury found Kane guilty on all nine charges, including two felony counts of perjury, after deliberating for four and a half hours. Five current or former aides to Kane testified during the trial on behalf of the prosecution. Political consultant Josh Morrow testified that he had conspired with Kane to leak the documents in question to the Daily News and then to cover up the leak. A text conversation between Morrow and Kane as well as an audio recording of a call between Morrow and another political consultant seeking advice about the coverup were both submitted into evidence. "It's embarrassing to come in here and admit I lied. It's hurtful to my career. It's hurtful to my relationships," said Morrow.

Kane's attorney, Gerald Shargel, told attorneys following the conviction: "We will continue this fight because we believe that our client has been wrongfully accused of this conduct."

Following the guilty verdict, Governor Tom Wolf (D) renewed his call for Kane's resignation. "Attorney General Kane has been convicted of serious charges. These are unbecoming of the commonwealth’s top law enforcement officer," he said in a statement.

The Pennsylvania Constitution prohibits felons from serving in public office; however, state courts have permitted convicted state officials in the past to remain in office until a sentencing hearing takes place. Attorneys convicted of felonies are usually disbarred, but that process also does not begin until sentencing and is often lengthy. The judge scheduled a sentencing trial for Kane on October 24; the felony charges carried up to 14 years in prison. Kane was sentenced to 10 to 23 months in prison.

Though Kane could potentially have remained in office while she appealed the verdict, she announced her resignation on August 16, 2016, effective the following day. "I have been honored to serve the people of Pennsylvania, and I wish them health and safety in all their days," she said in the statement.

Kane law license suspension

On August 25, 2015, the Office of Disciplinary Counsel—the investigative arm of the Disciplinary Board of the Pennsylvania Supreme Court—sought an emergency temporary suspension of Kane's law license, which ultimately led to her removal from the office she had held since 2013. The high court panel notified Kane of its plan on Friday, August 28, according to anonymous sources.

Kane pleaded not guilty to the charges against her. In response to the report, Kane said, "I can't talk to you about it because anything I say can be held against me."

The law allows an attorney 10 days to argue that he or she should not be suspended, after which time the office has 10 days to respond. The state supreme court holds the ultimate power of whether to suspend an attorney's law license, and Disciplinary Board reports showed that the court had imposed emergency suspensions for alleged "egregious conduct" four times in 2014, eight times in 2013, and nine times in 2012.

Retired Supreme Court Justice Ronald Castille said that if Kane's license was suspended, she should step down. Castille had authorized the grand jury investigation that led to the charges against Kane. Prosecutors alleged that Kane had directed her top aides to spy on Castille, among other justices. According to Kane's spokesman Chuck Ardo the court said that, if approved, the suspension would not take effect for 30 days.

Kane's criminal defense lawyer, Gerald Shargel, told PennLive that "the applicable rule (regarding the law license suspension) gives us the opportunity to move against the petition, and we're exploring every legal argument that can be made."

On September 4, Kane’s attorneys filed a 107-page explanation for why the court should not suspend their client's law license. Disciplinary matters are usually confidential, but Kane's lawyers filed her response publicly, saying that Kane had waived her right to confidentiality. In the response, Kane's attorneys rejected the allegations against her and argued that there was no proof that her continued practice of law would cause harm. They also wrote that suspending Kane's law license as a means of removing her from office would sidestep constitutional provisions and violate her right to due process because the facts were still in dispute. Her attorneys said that the disciplinary board's complaint largely mirrored the criminal complaint against Kane.

On September 21, 2015, the Pennsylvania Supreme Court unanimously decided to temporarily suspend Kane's law license, effective October 21, 2015. However, the justices noted that this action "should not be construed" as removing her from office.

Kane outlines her duties

Hours before the suspension went into effect, Kane met with her senior staff and advised them that she would continue performing "about 98 percent" of the duties of her elected office, which, she asserted, were administrative or managerial. Chuck Ardo stated that senior deputies would handle legal matters such as filing legal documents, appearing in court, and signing legal documents. Ardo told reporters after the meeting that Kane's senior staff was not in full agreement with Kane's analysis of her role during her suspension. Other attorneys in the state also expressed confusion over how one would separate legal duties from administrative ones while serving as attorney general, and concern about the future implications of such a move. In response, Kane drafted a memorandum outlining her legal situation and duties.

Top deputies express disagreement

On October 22, 2015, some of Kane's top deputies sent a letter to the attorney general expressing their disagreement with her assessment that she could continue to perform the duties of her office with a suspended law license. Kane's deputies said they were concerned that cases could be undermined if the attorney general did not delegate her responsibilities during the suspension. The same top deputies sent a second letter on October 30 stating that they also disagreed with Kane's interpretation that any emails passing through the attorney general's office email servers could be made public.

Public release of emails

Judicial ethics investigation and misconduct charges against Justice Michael Eakin

A day after her arraignment on the additional charges, Kane announced she had reported Republican Pennsylvania Supreme Court Justice Michael Eakin for possible ethics violations related to the pornographic emails recovered from her office's servers. In an October 2, 2015, letter to various ethics agencies, Kane wrote that the emails may have violated the Pennsylvania Code of Judicial Conduct, specifically the requirement that judges conduct themselves in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Kane also provided the Pennsylvania Judicial Conduct Board with an additional 1,000 emails. It was not initially clear whether some or all of these emails were newly discovered, or if they had been provided to investigators in 2014.

This was the second investigation into Eakin and his connection to the pornographic email; the previous year, the judicial conduct board had investigated and dismissed a complaint against him.

The court hired a law firm to look into the matter and Eakin said in a statement that he would cooperate with the investigation. Eakin was one of the state Supreme Court justices who unanimously voted to temporarily suspend Kane's law license in September 2015. On October 22, Kane released 48 of Eakin's personal emails to reporters. She released the emails on the same day that her law license suspension went into effect. Kane said these emails were among those provided to the judicial conduct board during its first investigation. For most of the emails, Eakin was a recipient and not the sender.

On November 2, the Pennsylvania Supreme Court announced it would not take immediate action to discipline Eakin, following the recommendation of special counsel hired by the high court to investigate the emails. In the 25-page report, special counsel Joseph Del Sole of Pittsburgh concluded that Eakin's emails were offensive and "of serious concern," but did not reveal any activity that was illegal or that could impair the judicial process. The state Supreme Court deferred the decision to initiate disciplinary action against Eakin to the judicial conduct board.

Robert Graci, chief counsel for the Pennsylvania's Judicial Conduct Board, withdrew from the investigation of Eakin's emails on November 11, 2015, after the Daily News reported that Graci was the justice's friend and served as general counsel for Eakin's 2011 retention campaign. Graci failed to disclose the relationship when he investigated and cleared Eakin in the board's 2013 email investigation, and did not disclose the conflict in early November when the board launched a second investigation. Board member Kevin Brobson told the Associated Press that Graci decided to step aside "to avoid the appearance of impropriety." The high court was unaware of the relationship between Eakin and Graci. Brobson declined to say whether the board knew of the friendship.

In a November 19, 2015, statement, Eakin urged Judicial Conduct Board investigators to transfer the email investigation to the Pennsylvania Court of Judicial Discipline to "alleviate any mistrust of the process." Unlike the Judicial Conduct Board, which meets behind closed doors, the Court of Judicial Discipline holds public meetings. Eakin issued this statement days after the board's chief counsel removed himself from the investigation, and after the Philadelphia Inquirer reported that board member Eugene Dooley had also been a recipient of the pornographic emails under investigation.

On November 24, 2015, James C. Schwartzman, vice chairman of the Judicial Conduct Board, responded to Eakin's request in a letter explaining that procedural rules prohibited the board from dropping its investigation and forwarding the matter to the court. Schwartzman wrote that doing so would inhibit the board's ability to file charges, if they were deemed necessary, and would undermine the board's responsibility to present a complete case before the Court of Judicial Discipline if charges were filed. Schwartzman noted that the board had nearly completed its investigation and would soon issue a decision on whether to charge Eakin. William C. Costopoulos, Eakin's attorney, responded to the letter by saying he understood the board's reasoning and was pleased that the investigation would be concluded soon.

On December 8, 2015, the board charged Eakin with two counts of judicial misconduct; Eakin was suspended without pay pending a trial. However, he announced his resignation on March 15, 2016, just two weeks before the trial was scheduled to begin. He would have been the first Supreme Court justice in the state to sit before the Court of Judicial Discipline.

Feudale email release prompts judge to order Kane to appear

Kane publicly released emails in October 2015 that Judge Barry Feudale, who had supervised the Jerry Sandusky grand juries from 2009 to 2011, intended for his lawyers and two reporters. Kane had discovered the emails because Feudale also sent them to a former state prosecutor using his old attorney general's office email address. At the time, Feudale was a senior Northumberland County Court of Common Pleas judge. Kane had publicly released two of the judge’s emails and also turned them over to the Judicial Conduct Board, accusing Feudale of judicial misconduct based on the content of the emails. Kane said the emails showed that Feudale had been considering leaking sealed state Supreme Court documents related to his removal as a supervisory grand jury judge. In July 2013, the state Supreme Court removed Feudale from supervising the grand jury that investigated public corruption and the Jerry Sandusky child molestation scandal after receiving Kane's request for his removal in April 2013.

Judge John Cleland presided over Jerry Sandusky's most recent appeal of his July 2012 child molestation conviction. Sandusky's defense attorneys based the appeal in part on allegations that prosecutors and Judge Barry Feudale, who supervised the Sandusky grand juries, had leaked secret grand jury information early in the process to spur potential witnesses to come forward. These allegations resurfaced after Kane publicly released Feudale's emails and alleged judicial misconduct based on their content in October 2015. Kane initiated Feudale's removal as supervising judge of the grand jury in 2013.

On October 29, 2015, Judge Cleland ordered Kane to provide any information she had on the leaks and the alleged involvement of prosecutors and Feudale by 10:00 a.m. on November 4, 2015. Kane responded to the judge's order in writing, stating that she had "no knowledge at this time of any email that proves such leaks." Seemingly dissatisfied with Kane's response, Cleland, later that day, ordered Kane to appear before him for questioning in a closed session on November 5, 2015.

During Kane's appearance on November 5, she was questioned for 30 minutes by Cleland and testified that she had no evidence—emails or other communications—that Feudale, the judge who oversaw the Jerry Sandusky grand jury investigation, had leaked confidential information about the case. Kane also told the judge that she had not meant to imply that Feudale or state prosecutors had leaked secret information in her October 28 news release. Sandusky's defense attorneys had requested that the attorney general's office turn over records of a possible grand jury leak to support Sandusky's appeal, but based on Kane's testimony, Cleland denied this request.

On November 4, 2015, Feudale filed complaints against Kane ranging from ethics violations to computer crimes. The governor, individual supreme court justices, the Office of Disciplinary Counsel, the State Ethics Commission, the state Senate special committee considered whether Kane should face a removal vote, while the FBI and others sought her removal from office. Kane spokesman Chuck Ardo described Feudale's filings as "a long list of allegations without a scintilla of evidence to back them up."

Removal from office

Under Article VI, Section 7 of the Pennsylvania Constitution, the governor can remove certain elected officials from office for "reasonable cause" after a two-thirds vote in the Senate. On October 23, 2015, Senate President Pro Tempore Joe Scarnati (R) announced that his chamber was forming a bipartisan committee to review whether Kane could continue to perform the duties of her office with her law license suspended indefinitely. Kane's spokesman Chuck Ardo responded to news of the Senate's action by saying that the attorney general "believes that any action the Senate takes before the legal process has an opportunity to work itself out to conclusion is premature."

Removal by the Senate

Pennsylvania Senate establishes special committee

On October 26, 2015, the Pennsylvania Senate established a special committee—the Senate Committee on Direct Address—to determine whether Kane should face a removal vote. The committee, chaired by Sen. John Gordner (R), included Sens. Lisa Baker (R), Art Haywood (D), Judy Schwank (D), Sean Wiley (D), and Gene Yaw (R), with Senate President Pro Tempore Scarnati serving as a seventh voting member. The committee was tasked with evaluating whether the Senate should move toward removing Kane by holding a formal hearing. Kane's defense team said it would fight the Senate's removal effort.

On November 6, 2015, Kane refused service of a Senate Committee on Direct Address subpoena for documents, arguing the committee lacked both jurisdiction and cause. Kane wrote to the committee explaining that the drafters of the 1873 "direct address" constitutional provision did not contemplate its application to an elected attorney general because the attorney general was not an elected office in Pennsylvania until 1980. Further, Kane argued that the provision was intended to be used to remove officials for incompetence. Drew Crompton, general counsel for Senate President Pro Tempore Scarnati, disagreed with Kane, asserting that the language and case law did not support her argument.

On November 13, 2015, Kane responded to the committee's subpoena with a letter and attachments, just hours after her spokesman announced that she planned to ignore the subpoena. In her letter, Kane said she responded "to maintain the respect and decorum of our government," but maintained that she did not believe the committee had the authority to remove her from office. The committee had subpoenaed communications from staff about Kane's law license suspension, a list of duties she delegated, and an explanation of her legal authority to delegate her legal duties to deputies. The committee had considered seeking a court order for these documents or requesting them from senior staff.

Committee hearings begin

The Senate Committee on Direct Address held its first hearing on November 9, 2015. Committee members questioned and heard testimony from the district attorneys from Berks, Bucks, and Somerset Counties. The three district attorneys testified that running their offices involved the practice of law and that separating the two may not be feasible. They agreed that a large portion of an office administrator's duties could be delegated, but that did not necessarily remove Kane from the practice of law. None of the district attorneys could identify any impact that Kane's suspension had on jury selections in their counties or otherwise on the work of their offices. The attorney general was not invited to attend the committee hearing.

The Senate committee held its second hearing on November 17, 2015, and heard testimony from legal ethics experts. Bruce Antkowiak, a criminal law professor, Robert H. Davis Jr., a Harrisburg attorney who defends lawyers facing discipline, and Beth L. Weisser, a Philadelphia law firm partner and legal ethics specialist, testified on the duties and limitations of suspended lawyers. None of the panelists recommended that a suspended law license was "reasonable cause" to remove the attorney general under a provision of the state Constitution, last used in 1891, which permits removal for “incapacity”. However, the panel acknowledged that Kane's deputies were correct when they wrote to Kane on October 22 requesting that she transfer her legal duties to First Deputy Attorney General Bruce Beemer. At the end of the hearing, Sen. Gordner, who chaired the committee, announced that Beemer, and Executive Deputy Attorneys General James A. Donahue III, Robert A. Mulle, and Larry Cherba, had been subpoenaed to testify before the committee on November 18.

Kane's top deputies testify

Kane's four top deputies testified before the committee on November 18, 2015. They described the impact of Kane's suspension on their office as "extraordinary." They stated that to the best of their knowledge they had not encountered any occasion when the attorney general had directly inserted herself into legal matters since her law license was suspended, but that they also might not have been aware of all of her actions because they had had limited contact with Kane since her suspension. Donahue, who directed the office's public protection division, testified that the "vast majority of the work that [Kane] does is legal work." All four deputies asserted that they would not do their jobs if their law licenses were suspended. The office established protocols for taking on new legal matters before Kane's suspension took effect and Beemer took on the responsibility of determining whether to take criminal or civil action. Kane's deputies expressed concern that the attorney general's suspension could put cases in legal jeopardy in the future and possibly lead to litigation.

Advisory opinion on the Senate's authority

The chair of the committee requested an advisory opinion from the Commonwealth of Pennsylvania Legislative Reference Bureau on whether the Senate, with the governor's approval, had the authority to remove Kane under Article VI, Section 7 of the Pennsylvania Constitution. The bureau provides nonbinding legal opinions to lawmakers and government officials. According to the bureau's advisory opinion, issued on November 17, the Pennsylvania Constitution allows for the removal of certain elected civil officers, including the attorney general, from office for reasonable cause even though the provision was drafted before the attorney general was an elected office. Kane's spokesman Chuck Ardo said the opinion did not change Kane's position that impeachment was the only constitutional means for removing her from elected office. The opinion noted that a specific exemption from removal, such as those for the governor and the lieutenant governor, could have been added after the attorney general became an elected office in 1980. The bureau also found it significant that the provision offered no means of gauging what could constitute reasonable cause or any limitations.

Senate committee issues final report

The special committee of the Pennsylvania Senate considering whether Kane could be removed from office for "reasonable cause" under Article VI, Section 7 of the Pennsylvania Constitution issued a report on November 24, 2015, finding that the Senate indeed had jurisdiction over a direct removal of the attorney general. Committee members recommended that the Senate accept their findings and announced their plan to submit a proposed resolution detailing the direct removal process within 15 days of the Senate's acceptance. The special committee based its findings on testimony from Kane's top deputies and district attorneys that described most of Kane's job responsibilities as legal in nature, Kane's inability to perform most of her responsibilities with a suspended law license, major staff adjustments required to continue the work of the office, and the potential for future legal challenges.

The seven members of the bipartisan committee voted unanimously that the Senate had jurisdiction in the direct removal of the attorney general, but only five members agreed there was a sufficient basis for removal proceedings. Republican members Scarnati, Gordner, Baker and Yaw, and Democratic member Wiley, voted to move forward, but Democrats Haywood and Schwank voted against moving forward with the removal process.

Kane responds to committee report by appointing a special prosecutor to lead pornographic email inquiry

On November 25, 2015, Kane released a statement reiterating her contention that the special committee's attempt to remove her from office was unconstitutional. She also said that she planned to assign a team of special prosecutors to investigate each public email account involved in the circulation of "racist, misogynistic, homophobic and religiously offensive content" in an effort to restore the public's confidence in the judicial system, and to ask federal authorities to investigate offensive emails circulated by assistant U.S. attorneys in Pennsylvania. Kane's statement said she would announce the team of special prosecutors on December 1, 2015.

Kane held a news conference on December 1 at the National Constitution Center in Philadelphia to announce the appointment of former Maryland Attorney General Doug Gansler to lead a team of special prosecutors to examine state government servers for "racist, misogynistic, homophobic and religiously offensive emails" circulated by Pennsylvania judges, prosecutors, or other individual. The team was tasked with looking for violations of Pennsylvania's criminal, civil, or ethics laws. Responding to questions about whether the attorney general can take this action with a suspended law license, Kane’s spokesman, Chuck Ardo, said on November 30, "The attorney general believes the appointment of a special prosecutor is a policy decision that doesn't require any legal consideration and she also retains authority over personnel." Legal experts were uncertain whether the appointment was policy-related or legal in nature and suggested that the question would be resolved later if the authority of the special prosecutor was challenged.

Senate votes for removal resolution

On December 9, the Pennsylvania Senate voted unanimously for a resolution to determine whether Kane could remain in office while her law license was suspended. Hearings on that question were scheduled to begin on January 12, 2016.

Kane continued to maintain she was not guilty of criminal charges related to allegedly leaked grand jury materials. A spokesman for the attorney general questioned the validity of the Senate's process. "The attorney general continues to believe that the path the Senate is taking is unconstitutional and will decide how to proceed from this point on," said Chuck Ardo.

On February 10, 2016, the senate voted 29-19 to remove Kane from office, but the resolution failed because it needed a two-thirds majority to pass.

Removal by the House

Lawmaker seeks support for impeachment proceedings

On November 24, 2015, Rep. Garth Everett (R) circulated a memorandum among lawmakers calling for an investigation by the House Judiciary Committee into whether Kane should be removed from office by impeachment. Everett reported that he had the support of a dozen colleagues who believe the attorney general should be removed. Impeachment proceedings in Pennsylvania begin with a vote in the House followed by a trial in the Senate.

House votes to begin impeachment investigation

In a separate process from the Senate removal resolution, on February 10, 2016, the Pennsylvania House of Representatives voted 170-12 to begin an investigation to determine if the House should file articles of impeachment against Kane. In Pennsylvania, impeachment is the sole power of the House and, if articles were brought, the impeachment trial would be conducted by the Senate and require a two-thirds vote for conviction. The Pennsylvania Constitution asserts that "civil officers shall be liable to impeachment for any misbehavior in office." The House impeachment committee was expected to make a decision by spring.

On June 28, 2016, the impeachment committee voted to begin subpoena proceedings in its investigation into Kane. The vote gave the committee chair state Rep. Todd Stephens (R) the power to issues subpoenas. It also gave the committee's special investigator, former federal prosecutor Joe Poluka, the power to file petitions in court to subpoena Kane's records and to seek protective orders for potential witnesses. Some House Democrats questioned the cost of impeachment proceedings given that Kane did not run for re-election in 2016.

Following Kane's August 2016 conviction and subsequent resignation from office, Stephens announced that the committee still would move forward with the impeachment process despite Kane no longer being in office. "This is to ensure she is held accountable not only for her criminal conduct, but for all the other misconduct that has occurred in the Attorney General's office under her tenure," he said. Stephens claimed that the House investigation had uncovered evidence of further misconduct from Kane while in office, most notably staffing changes that went against office policy or were retaliatory in nature.

After an impeachment committee files a report, the full House Judiciary Committee must approve the impeachment before it can move forward. "I think enough time, attention and money has been spent on Kathleen Kane already, and it's time for everyone to move on," said senior member of the Judiciary Committee Joseph Petrarca (D).

Stephens said that the committee would complete its report before the end of the year using in-house resources so as to minimize the cost to taxpayers.

Sentencing

After her conviction, Kane faced a maximum of 12 to 24 years in prison. At the sentencing hearing held in October 2016, Kane pleaded for leniency, reminding the presiding judge about her teenage children, and arguing that losing her position as attorney general and her law license was punishment enough.

Montgomery County Judge Wendy Demchick-Alloy disagreed and sentenced Kane to 10 to 23 months in jail and 8 years probation. In handing down the sentence, Judge Demchick-Alloy insisted on prison time, rather than house arrest, telling Kane that "a violation of this magnitude and severity is an extraordinary abuse of the system."

Demchick-Alloy allowed Kane to postpone her sentencing while Kane's case was on appeal with the state supreme court.

Supreme court rejects appeal

On November 26, 2018, the Pennsylvania Supreme Court rejected Kane's appeal, requiring Kane to serve out her sentence.

Supreme Court disbars Kane

The disciplinary board of the Pennsylvania Supreme Court disbarred Kane on March 22, 2019, effective in April 2019.

See also

• Kathleen Kane
• Attorney General of Pennsylvania
• Pennsylvania Supreme Court

External links

Suggest a link

• Pennsylvania Attorney General's office
• The Disciplinary Board of the Supreme Court of Pennsylvania