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AG Kane believed leaked documents not grand jury material, lawyer says

KaneInvestigationJPEG06c9b
Pennsylvania Attorney General Kathleen Kane arrives on Monday, Nov 17, 2014, to testify before a state grand jury near Norristown.
KaneInvestigationJPEG0229f
Pennsylvania Attorney General Kathleen Kane, accompanied by attorney Gerald Shargel, a reads a statement to reporters on Monday, Nov. 17, 2014, upon arriving to testify before a state grand jury near Norristown.
KaneInvestigationJPEG06c9b
Pennsylvania Attorney General Kathleen Kane arrives on Monday, Nov 17, 2014, to testify before a state grand jury near Norristown.
KaneInvestigationJPEG0229f
Pennsylvania Attorney General Kathleen Kane, accompanied by attorney Gerald Shargel, a reads a statement to reporters on Monday, Nov. 17, 2014, upon arriving to testify before a state grand jury near Norristown.

NORRISTOWN — Attorney General Kathleen Kane testified Monday for almost 2 12 hours before a statewide grand jury investigating a leak by her office, but she told reporters beforehand that overlapping court orders prevent her from publicly disclosing why she testified and how the situation prevents her from doing her job.

It is linked to the release of pornographic emails that her office exposed, but court-ordered restrictions mean she cannot explain that link, Kane told reporters. The court orders expose her to “legal risk if I do my job as attorney general.”

The grand jury, meeting at the attorney general’s office in Trooper, about 4.5 miles northwest of Norristown, reportedly is investigating a leak to the Philadelphia Daily News of confidential documents from 2009 on a political activist whom prosecutors ultimately did not charge with a crime.

Kane arrived accompanied by attorney Gerald Shargel, of Winston & Strawn in New York, and Lanny Davis, a Washington lawyer and crisis communications specialist. Her lawyers said she would not assert her Fifth Amendment right to remain silent.

Kane knew that her office leaked information to the Daily News but believed it was not grand jury material, Davis said.

“She did not commit a crime. She did nothing wrong,” Shargel said later.

Leaking grand jury material can result in a contempt of court citation, punishable by up to six months in prison.

Kane appeared exhausted after her testimony and ate a candy bar during the walk to her car. Fatigue was an issue for her as a result of a concussion she suffered in an Oct. 21 auto accident, Davis said.

Kane is the first woman and Democrat elected as attorney general in the state.

A statement released by Davis’ firm made no mention of the leak to the Philadelphia newspaper. Instead, Kane referred to her public release of pornographic emails from staff computers, uncovered during a review of the previous administration’s handling of the Jerry Sandusky pedophilia case.

“Due to continuous, even overlapping court orders since last March, I am not allowed to explain why I am testifying or what my testimony has to do with the release of the pornographic emails under the Right to Know Law,” her statement said.

Davis said “the court orders, as we speak, are being challenged.”

Kane pledged to “tell the special prosecutor the truth and the facts surrounding the disclosure of information to the public that was done in a way that did not violate statutory or case law regarding grand jury secrecy.”

Her statement concluded: “I wish I could say more and answer all your questions but I cannot. But I can promise you this: The truth and the law will prevail.”

Shargel said that he would accompany Kane while she testified and that she could ask to consult with him.

Taxpayers won’t pay her legal bills, Davis said.

Kane’s statement said she is “fighting for an end to the abuse of the criminal justice system.”

Several senior public officials resigned when the sexually explicit emails became public, she noted. Among them, former Supreme Court Justice Seamus McCaffery retired soon after his colleagues suspended him for sending porn to a friend — an agent — in the Attorney General’s Office.

Neither attorney Thomas Carluccio, the special prosecutor heading the grand jury inquiry, nor Judge William Carpenter, the supervising grand jury judge in the eastern part of the state, spoke to reporters waiting outside the jury’s room.

Asked whether it is over, Kane said, “It’s up to Mr. Carluccio.”

“I’m stunned by her testimony. I’m flabbergasted,” said former Montgomery County District Attorney Bruce Castor, a Republican. The judge, in starting the investigation, had determined it was grand jury material, Castor said. “What she is saying is she’ll decide what’s a grand jury leak, not the judge.”

Investigating grand juries operate in secret. Typically only a prosecutor, the jurors and a stenographer are present to hear a witness. Under Pennsylvania law, the supervising judge can authorize others to be there, such as an interpreter, security guard or someone to assist with presentation of evidence.

Though alternate jurors can hear testimony, only permanent jurors take part in deliberations or voting.

This grand jury’s term expires Dec. 31, but experts have said if its work is not completed, a summary of its investigation could be transferred to another grand jury.

Shargel, a partner in Winston & Strawn, has represented high-profile cases for more than 40 years and is “one of the most accomplished and well-known defenders in serious criminal cases,” according to his biography on the firm’s website.

Davis, who bills himself online as a “lawyer, author, commentator, strategist and crisis manager,” is best known for his role as special counsel to President Clinton. In December 2011, Penn State University hired him to advise Rodney Erickson, then the school’s incoming president, as the Sandusky case unfolded.

The Philadelphia Inquirer has reported that Kane twice failed to respond to the grand jury’s subpoena — once because of a scheduling conflict and then because of the car crash last month.

She has been recovering from a reported concussion and whiplash at her home in Clarks Summit, near Scranton, since the crash. Kane’s doctors advised that she not return to work before Nov. 24.

Brad Bumsted is Trib Total Media’s state Capitol reporter.

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