Saturday, October 24, 2015

GateHouse: The Kane Mutiny: Can things get worse for Pennsylvania's AG?

Matthew T. Mangino
GateHouse Media
October 23, 2015

In Pennsylvania politics the sublime has become the surreal. A Hollywood producer might have cause to pause if the state’s ongoing political scandal were handed to her as a movie script. To start, the attorney general, Pennsylvania’s top law enforcement officer, has had her law license suspended. But she has made it clear that the inability to practice law will have little effect on her ability to function as attorney general.
Kathleen Kane, Pennsylvania’s attorney general, is under indictment for leaking secret grand jury testimony. The leak was meant to embarrass former AG staffers who had challenged her decision to review the sexual assault investigation of former Penn State assistant football coach Jerry Sandusky.
During the course of her office’s review of the Sandusky investigation, a trove of pornographic emails exchanged between prominent member of the AG’s office and high ranking government officials were discovered. Those emails resulted in the resignation of a state Supreme Court justice, a member of the former governor’s cabinet and a member of the state board of probation and parole.
In late 2014, a court filing, attempting to quash the grand jury investigation of Kane’s alleged leak, detailed an alleged conspiracy to discredit Kane. According to Kane’s attorneys, the criminal investigation of Kane was orchestrated by longtime state prosecutors Frank Fina and E. Marc Costanzo, who had left the Attorney General’s Office prior to Kane taking office.
“These two men – peddlers of pornography and obscenity depositing state paychecks . . . is an injustice of the highest order that cannot be allowed to stand,” Kane argued in the court filing.
The porn scandal continues. A second Supreme Court justice is being investigated by the Judicial Conduct Board for his role in sending and receiving pornographic emails on state time.
Kane license was placed on emergency temporary suspension by the Pennsylvania Supreme Court last month, as a result of perjury, official oppression and now a second set of similar charges all brought by the Montgomery County district attorney. The Disciplinary Board contended that the attorney general had taken part in “egregious conduct” that violated rules of professional conduct and “caused substantial public and private harm.”
The suspension officially took effect at the end of business on Oct. 21.
Kane told her staff this week that the suspension of her law license will have little effect on her work as attorney general. “She said that virtually everything she does is either administrative or ministerial, and she intends to continue doing those things,” spokesman Chuck Ardo told the Pittsburgh Post-Gazette. “And the two percent of what the attorney general does that may require a valid law license; she has asked senior staff to take care of.”
Robert Power, associate dean at Widener University Law School, told the Post-Gazette that Kane is probably right that much of an attorney general’s work is management. But making recommendations about prosecutions or litigation strategy “would seem to me to constitute practicing law,” he said.
“If she is to make final decisions even on just strategies of how to proceed in a particular matter, whether to proceed in a particular matter, those are all legal decisions,” Power said. “Just because someone else signs the papers and appears in court does not change that fact.”
However, it is not clear if Kane can survive yet another challenge, this one by her own staff. Ardo made it clear there is not unanimous agreement within the office with Kane’s position, reported the Harrisburg Patriot-News.
He said it was not immediately clear whether any of Kane’s top deputies would formally contest her position.
A porn scandal, conspiracy, indictment, suspension and now the talk of mutiny--Captain Queeg had it easy compared to Kathleen Kane.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at and follow him on Twitter at @MatthewTMangino.
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