On Wednesday, when a State Senate panel is expected to release its preliminary finding as to whether Attorney General Kathleen Kane can perform the duties of her office, a particularly Kafkaesque scenario might kick in. If the Senate ultimately opts for “direct removal” of Kane—bypassing impeachment’s due process—the Senate and Governor will be able to speedily remove the Attorney General. But Kane’s trial on two felony charges of perjury and 10 misdemeanors probably won’t come until next spring. What if, as one legal expert predicts, she’s acquitted of perjury in that trial? What do we say to her then? “Uh, sorry for ignoring your 3.1 million votes and for shooting first and asking questions later…our bad”?
That’s not so far-fetched. We’re about to remove from office a public official before a jury of her peers has had a chance to size up the case against her.
Because of this obscure process, alternately referred to as direct removal or direct address, the Senate won’t even be asking the question we all want the answer to: What did Kathleen Kane do and when did she do it (to morph the famous Watergate-era phrase)? Instead, it will concern itself with a far narrower question: Did the State Supreme Court’s temporary suspension of Kane’s law license render her unable to fulfill the duties of her office?
What if, as one legal expert predicts, she’s acquitted of perjury in that trial? What do we say to her then? “Uh, sorry for ignoring your 3.1 million votes and for shooting first and asking questions later…our bad”?
Of course, Watergate was an impeachment, which has all the earmarks of a trial. This is something different. Just when you thought this story couldn’t get any weirder, or more embarrassing for the state, now comes this possible surreal denouement. How did we get here?
It started when the Court temporarily suspended Kane’s law license, effective October 22. According to Duquesne law professor Bruce Ledewitz, the Court’s action was an unconstitutional overreach, because suspension was the rightful province of the Judicial Conduct Board and the Court of Judicial Discipline, and because it could be construed as the Court having prejudged the case against Kane.
“I can’t find anyone who says the suspension was justified,” says Ledewitz. “When it’s been done in the past, it’s usually to keep a lawyer who is under investigation from continuing to handle a client’s money. Obviously, that’s not the case here.”
In its unanimous order, the Court wrote that temporarily suspending Kane’s license “should not be construed as removing [Kane] from elected office and is limited to the temporary suspension of her license.” Kane, the Court said, could no longer make legal decisions, but could continue to carry out the administrative duties of her office.
At first blush, the Court’s statement seems to preempt what the Senate panel is now up to: Deciding whether the suspension of her law license renders her incapable of serving as Attorney General. But Ledewitz says it actually set up direct removal, a provision of the state constitution that hasn’t been used in 124 years. To remove Kane quickly in a process that avoided making any judgment about her guilt or innocence needed a trigger: Deciding whether Kane is incapacitated by the loss of her law license was the only way to get there. “I think this was intended by the Court,” Ledewitz says. “They set up direct address in the Senate to remove her.”
After all, a quick removal of Kathleen Kane would avoid confronting all her messy allegations regarding an old boys’ network that she says has been out to get her ever since she ran against the very office she sought to lead. Some of those questions could be difficult for the Supreme Court to handle, given that at least two of its justices took part in the porn-ridden email chain Kane points to as evidence of the cabal she’s facing, and since the Judicial Conduct Board has proven to be part of our judiciary’s thin blue line.
Making this mess all the more tragic for the body politic: Ledewitz says it is highly likely Kane will be acquitted of perjury when her case comes to trial. “The only crime that matters is the perjury charges, and any prosecutor will tell you that perjury is incredibly hard to prove,” Ledewitz says. “The underlying charges of releasing grand jury material are not felonies. Felonies like perjury are what you get impeached for. The irony is that had Kane just said, ‘I did it and I’m sorry’ when first accused of leaking grand jury information, we wouldn’t be where we’re at.”
The damage of this story has been indiscriminate. Tarnish has already affixed itself to the Attorney General’s office, where Kane’s deputies testified against her interests before the Senate panel (though the reporting of that erroneously implied that they’d been loyalists…in fact, much of Kane’s staff had long been more loyal to her nemesis, former prosecutor Frank Fina), and to the Supreme Court. “And don’t forget the supposedly independent bodies like the Judicial Conduct Board and the Court of Judicial Discipline, both of which have proven to be too close to judges,” says Ledewitz. “At this point, you have to ask, How do we set up a judicial structure the people have confidence in? We need to solve our issues of integrity.”
“I can’t find anyone who says the suspension was justified,” says Ledewitz. “When it’s been done in the past, it’s usually to keep a lawyer who is under investigation from continuing to handle a client’s money. Obviously, that’s not the case here.”
The Inquirer has called for the State Supreme Court to appoint a special prosecutor to conduct an independent investigation into porngate and Justice Eakin’s role in it. The problem with that is twofold: Do you trust the Court to hire a truly independent prosecutor? Also, any investigation into the hateful email chain should go beyond Eakin and instead delve into a wider statewide judicial culture that Kane says was aligned against her.
That’s why I’ve suggested we need outside investigators looking into just what happened here—all of it—and why. Either a Justice Department special prosecutor or a Congressional committee investigation. Ledewitz goes me one better. “How about drafting a committee of law school deans?” he suggests. “They’re not dependent on the courts, they don’t practice law, they’re smart. I even asked my dean here at Duquesne if he’d be interested. He looked at me like I’m nuts.”
As I’ve written before, this is not a brief in defense of Kathleen Kane, who has often been her own worst enemy. It is, instead, recognition of an indisputable truth: Even though we’re no closer to finding out precisely what went down in this whole sordid mess, the Senate may be about to take some drastic action nonetheless. Despite what the Inquirer has editorialized, that feels radically un-American. If Kane is removed, it will likely have the effect of moving this story out of public view, and rendering it forever murky. And if, as Ledewitz suggests, she is later acquitted of perjury, well, shame on us. Then we will have turned Kathleen Kane into a modern-day Raymond Donovan. No, not the one played by Live Schrieber on Showtime. The one who was Ronald Reagan’s Secretary of Labor in the 1980s. Driven from public office, Donovan was later acquitted of fraud and larceny in a high-profile business case. On the courthouse steps after the jury’s verdict, he uttered the words that just might come from Kathleen Kane one day: “Which office do I go to to get my reputation back?”
