Pa. court upholds prosecutor appointed to investigate leaks from AG’s office
HARRISBURG — Attorney General Kathleen Kane on Tuesday lost a legal challenge in the Pennsylvania Supreme Court, a decision that may lead to criminal charges against the state’s top law enforcement officer.
The high court rejected Kane’s argument that a county judge overseeing a statewide grand jury illegally appointed a special prosecutor to investigate leaks from Kane’s office to the Philadelphia Daily News.
“Although we recognize that there are legitimate concerns arising out of a judicial appointment of a special prosecutor, we follow the approach of the United States Supreme Court and the many other jurisdictions which have found such appointments proper as an essential means to vindicate the courts’ own authority,” Chief Justice Thomas Saylor wrote in a 4-1 opinion with Justice Debra Todd, a Cranberry Democrat, dissenting.
Montgomery County Judge William Carpenter “acted within his authority and sound prerogative” in appointing attorney Thomas Carluccio to lead the grand jury, the court said.
Montgomery County District Attorney Risa Vetri Ferman, a Republican will decide whether to prosecute Kane for perjury, obstruction of justice, official oppression and other charges related to leaks of secret material from a 2009 investigation.
The grand jury report showing evidence remains sealed.
“We are disappointed in today’s Supreme Court’s decision,” said Lanny Davis, one of Kane’s lawyers in Washington. “We have faith in the judicial system and that the district attorney … will look at the evidence and the law and find that Attorney General Kane is innocent.”
But for Kane, the first female and Democrat elected attorney general, the ruling “opens the door for some much more serious scenarios to play out,” said Christopher Borick, a political science professor at Muhlenberg College in Allentown.
“This could have been a very positive moment for her in her political and legal struggles,” Borick said. “This increases … the possibility that her problems will magnify.”
The grand jury investigated whether Kane, 48, of Scranton committed perjury last year by agreeing to leak documents to embarrass a former prosecutor with whom she feuded. Kane has denied any wrongdoing.
“If she is charged, that is a real difficult position for an attorney general to be in and still do her job,” Borick said.
Davis has argued that “angry Republican men” are railroading Kane, in part because she uncovered pornography-sharing through emails in the office before she arrived in 2013.
Carpenter and Carluccio are Republicans.
Kane contended that no law provides for special prosecutors and that Carpenter could have given the complaint about a leak to a district attorney. But Carluccio, on March 11, reminded the court of a 2008 case in which it appointed a special prosecutor to investigate leaks in a Dauphin County gaming case.
The court reaffirmed its position in Kane’s case.
State and common laws allow judges to protect the integrity of grand juries, Carluccio said.
Whether she is charged or not, Kane is “in big trouble,” said Jack Treadway, a retired Kutztown State University political scientist.
“The public’s perception in such situations is that something must be going on,” Treadway said. “She seems to move from one crisis to another. I can’t imagine she will not be prosecuted,” especially given the “partisanship and ill-will associated with this case.”
Moreover, Democratic leaders may decide “she’s not worth the trouble,” Treadway said.
Davis has acknowledged that Kane authorized releasing a 2014 internal memo about the investigation of former Philadelphia NAACP president J. Whyatt Mondesire, who was never charged, but Davis said she did not provide the Daily News a memo from 2009.
The document Kane released said investigators did not interview Mondesire or call him before a grand jury, Davis said. He said Kane did not realize a transcript of an agent’s interview was attached.
The grand jury found Kane tried to retaliate against former Deputy Attorney General Frank Fina, who ran an unrelated undercover operation in which an informant videotaped lawmakers taking cash. Kane blamed Fina for tipping off reporters that she declined to prosecute them, a claim Fina denied.
Fina’s boss, Philadelphia District Attorney Seth Williams, took the case and recently arrested the lawmakers — black Philadelphia Democrats — on bribery charges.
The Mondesire leak supposedly was intended to show that Fina dropped an investigation of a black political activist.
The Tribune-Review reported last month that Fina and another former prosecutor wrote to Carpenter in May when a reporter contacted them with grand jury information, prompting the investigation. Their letter did not name Kane but said someone “committed a serious crime.”
Brad Bumsted is Trib Total Media’s state Capitol reporter. Reach him at [email protected].