Pennsylvania Senate begins process of removing Attorney General Kane

Pennsylvania Senate begins process of removing Attorney General Kane
Source: www.post-gazette.com

Earlier, Pennsylvania Attorney General Kathleen Kane refused to resign despite being suspended from practicing law for her apparent crimes (such as perjury, official oppression, and obstruction of justice) by the Pennsylvania Supreme Court. (Before that, Kane was already rated as America’s worst state attorney general by the Competitive Enterprise Institute). Now, the Pennsylvania State Senate has begun the slow, difficult process of removing Kane from office. The Associated Press reports:

The Special Committee on Senate Address voted 5-2 to recommend the full Senate start a formal process that could result in a vote to remove Kane. It made the recommendation in a 21-page report after holding three public hearings this month, including testimony by top lieutenants that Kane’s unprecedented lack of an active law license has exposed her office’s cases to legal jeopardy…. Kane is running her divided office with a suspended law license and is fighting charges that she leaked secret investigative material to a newspaper and lied under oath about it.

The Senate must still vote on whether to start the formal inquiry, which falls under an obscure constitutional provision … The committee said within 15 days it will give the Senate a proposed resolution to consider that would start the process. The chamber is controlled by Republicans, 31-19. If it accepts the recommendation, the Senate will conduct a hearing where Kane can defend herself before any vote to remove her. That process could take weeks, and removal will require approval of two-thirds of the chamber, or 34 senators. The constitutional provision says the governor shall remove officers after the Senate votes for it. Gov. Tom Wolf, a Democrat, has urged Kane to resign, but she has resisted.

Although the state constitution expressly authorizes such removal, Kane bizarrely claimed that any attempt to remove her would be unconstitutional: “Kane said any attempt by the Senate to remove her is unconstitutional….  The Senate panel unanimously rejected Kane’s argument that the Senate lacks the authority to remove her,” although two of Kane’s fellow Democrats on the panel believed her removal was not yet necessary.

Once again, Kane has put her own selfish interests ahead of her state’s interests, contrary to her ethical duties as a lawyer. Kane’s refusal to step down endangers her office’s ability to operate lawfully, since she is no longer allowed to practice law, and practicing law includes supervising other lawyers — something she continues to do, including overseeing criminal prosecutions by others in her office.  Indeed, she is now prodding them to pursue seemingly baseless criminal charges against others over their offensive emails: “Kane raised the possibility of criminal charges against others in a slowly unfolding scandal involving public officials exchanging sexually explicit or otherwise offensive emails. Hours after a state Senate committee said the full chamber should consider moving against Attorney General Kathleen Kane, she announced a team of prosecutors will look into ‘racist, misogynistic, homophobic and religiously offensive content’ of emails on her office’s servers.”

Kane’s promised investigation seems to be retaliatory and personally vindictive, since one of the people who received offensive emails sent from her office’s servers is a current state supreme court justice (who also sent at least one offensive email, although most of the offensive emails were sent to him, not by him), and the state supreme court suspended her from the state bar last month for her apparent crimes. The investigation also appears to be baseless: Offensive emails may sometimes be sufficient reason to fire a public employee (since government agencies have broad proprietary power to regulate the speech of their own employees, if it undermines the work of the agency, or simply because it does not involve discussion of political or social issues or other matters of “public concern”), or admonish a state judge, but they are not a reason for criminal prosecution or punishment by juries. The federal appeals court in Philadelphia made this clear in In re Kendall (2013), a decision that overturned the prosecution of a judge for inappropriate remarks. Offensive emails are protected against prosecution or lawsuits by the Supreme Court’s decision in Reno v. ACLU (1997), which struck down an internet decency law, and the Supreme Court’s 2011 decision in Snyder v. Phelps, which made clear that even outrageously bigoted speech is generally protected against a jury verdict by the First Amendment. As the Supreme Court noted in Connick v. Myers (1983), even where an agency can fire an employee for his speech, due to its proprietary prerogatives, the employee still has the same protection against lawsuits (such as defamation lawsuits) over that speech as a “man on the street” would.

Kane has claimed her problems are the result of a sexist conspiracy by Republican men angry she exposed their pornographic emails.  (Never mind that most of the state’s Democratic-leaning newspapers, like the Philadelphia Inquirer, long ago called for her resignation — and the fact that one of the most prolific exchangers of sexually offensive emails was not the Republican state supreme court justice who voted with a bipartisan majority to suspend Kane from the practice of law — who sent few such emails — but rather a Democratic colleague who was earlier forced to resign).

Her sexism claims are ironic given her own office’s flagrant contempt for state sexual harassment laws. Kane turned a blind eye to sexual harassment and assault by her deputy.  She gave that deputy the authority to fire the victims, despite being notified of the harassment and advised to fire the harasser. Kane promoted Jonathan Duecker, a former supervisor of the AG office’s narcotics agents, to serve as her chief of staff after a report from her internal affairs unit informed her he had made unwanted and inappropriate sexual advances to two female colleagues, such as putting his hand underneath a colleague’s blouse, under her skirt, and on her thigh, despite her repeated objections. Even after this became front-page news in Philadelphia newspapers, Kane’s office feigned ignorance of the investigation, with her spokesman claiming, “I have no idea whether there was an investigation or not,” even though the Office of Professional Responsibility sent its report to Kane five days before she announced she was promoting him. Kane not only failed to fire Duecker after the personnel office recommended his firing, but gave him the power to hire and fire, enabling him to make his victims live in fear through the omnipresent specter of retaliatory firings or disciplinary action, and create a hostile work environment for them. Kane’s office’s indifference to sexual harassment allegations was at odds with state law governing sexual harassment that requires agencies to “take ‘immediate and appropriate corrective action’ when one employee harasses another.” It also invited potential lawsuits against the state that could be costly to taxpayers. One alleged victim said that when she heard Duecker had been promoted, “my stomach turned sick, and I just wanted to leave the office.”

Kane is corrupt. For example, in 2013, Kane secretly shut down an undercover sting that had captured several Philadelphia elected officials of her own party on video accepting bribes. The case against them was so strong that Philadelphia’s DA, himself a Democrat, indicted several of them and obtained guilty pleas from at least four. Kane sought to deflect criticism by claiming that the sting was motivated by racism, a charge so irresponsible and groundless that Philly’s African American DA said it was like “pouring gasoline on a fire.” She also sabotaged an investigation of a gaming official connected to a tycoon with alleged mob ties. Kane awarded lucrative no-bid contracts to campaign contributors, and concealed them from the public in violation of state’s Right to Know Law. Kane declined to defend state laws, such as gun-rights laws and marriage laws, that were challenged in court by liberal groups, even though state law specifically required her to defend state laws.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. Hans also writes for CNS News and has appeared on C-SPAN’s “Washington Journal.”


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