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Attorney General Kathleen Kane suddenly turned into Wolverine last week over the Inquirer stories about her deep-sixing the investigation into House members and others for taking money from a “lobbyist” wearing a wire.
Like that X-Man character with 10-inch steel talons, she has ferociously snarled and slashed at everyone in proximity of the case: the paper, the prosecutors who ran the investigation, the star witness, anyone—anyone—who dares to suggest her
decision not to prosecute was political.
I can understand why. It’s not fun to have your credibility attacked and also watch your political future blow up before your eyes. But that has been what has been happening to Kane.
Until last Sunday morning, Kane had rock-star status in the Democratic party, being mentioned for governor and U.S. Senator. A credible, smart, independent woman who beat the odds to win a statewide office.
Then the Inquirer hit with its story about the case.
Now, as she surely knows, she has handed a future opponent—whether that be an opponent for attorney general, for governor or U.S. Senate—a toxic issue. It doesn’t take much imagination to envision it as a 30-second TV ad about her letting corrupt Philadelphia pols off the hook.
That characterization certainly doesn’t comport with her understanding of the case, which she has trashed as ineptly done, deeply flawed and tinged with racism (the takers of the money are all black) and sexism (against her, presumably.)
The debate over whether she should or should not have prosecuted will make for interesting reading in the Legal Intelligencer. To summarize, reasonable lawyers will disagree.
But, for those of us with less supple minds, it seems a case where investigators captured on tape legislators accepting cash payments from a ne’re-do-well turned ‘lobbyist’ who was wearing a wire at the behest of investigators from the Attorney General’s office.
We also know that Kane was not at all enamored with the chief investigator in the case, a lawyer named Frank G. Fina. Fina had a stellar track record. He put a lot of corrupt pols into prison in his years in the AG’s office. He also was the guy who ran the Sandusky-PennState investigation, which Kane—as a candidate—had criticized for taking too long, implying innocent children were raped while the AG dawdled.
Fina was among the first to go when Kane became Attorney General, but the Philly case remained behind. Whether she viewed it as “deeply flawed” because it was done by her adversary, Fina, I cannot say. Her decision seems to have been propelled more by politics, paranoia and personal animus than legal considerations.
Last week, even while vehemently defending her decision not to advance the case to the courts, she did let it drop that: “I believe that we have evidence that certain legislators were taking money, and that’s a crime.”
Let’s see if I’ve got this right: You do have evidence of a crime. You are a prosecutor. And yet you are not prosecuting? Hmmm.
Despite her misgivings over the case, wouldn’t it have been better for the Attorney General to call in neutral arbiters to decide the issue? Specifically, a judge and jury.
She could leave it to the defense lawyers to tear apart the credibility of the star witness, question the racial motives of prosecutors, and otherwise have at the evidence.
As an alternative, she could have decided that the matter, though flawed as a criminal case, did raise serious questions about the behavior of elected officials and turned the files over to the House Ethics Committee or the state Ethics Commission for review and action. There is, after all, a mound of evidence and about 140 hours of taped conversations included in the file. They could listen, review the written record and rule.
She did none of that.
Could she have believed that word of the case would never leak out? That it would remain buried in the tombs of the AG’s office?
Whatever she thought, out it popped. Now, it is less a matter of law than of politics. The case will be judged in an arena that operates on rules of evidence and procedures far more lax than the courts. The court of public opinion is where she doesn’t want it to be.
But, it’s too late. The grenade has gone off. She cannot unexplode it.
So, for starters, Kane suffers severe political damage.
As to the four legislators involved, they will be judged by their peers—beginning with the House Ethics Commission, which has decided to take up consideration of the case.
Defenders of the four argue that what is involved—if anything—is a failure to report cash gifts. As hard as it is to believe, elected officials in Pennsylvania are allowed to accept cash —as long as there is no quid pro quo involved. If there is, it constitutes a bribe and is a felony.
If it is a gift, unreported on their state financial disclosure forms—and this “gift” was not reported by any of them—the remedy would be to file an amended report that lists the “gift” and face a charge from the State Ethics Commission. But that violation is a misdemeanor, with only a minor penalty permitted.
Again, though, this is not a matter of law, but of politics. A more relevant question is: Can the members of the House, all of whom are up for re-election this year, spend the rest of the year with a quartet of tainted legislators sitting in their midst and do nothing about it?
Can they tap them on the wrist with an “official censure,” essentially a reprimand, and let the matter go at that?
I think not. In the eyes of the public, they would look like they were protecting their own and winking at corruption.
This is a body that has had 13 of its members convicted of crimes and forced to resign since 2000, a list that includes two House Speakers.
It’s a body that already has the reputation of being corrupt and contented. And now it has to handle a case involving four more.
The political dynamic inevitably will lead to censure so harsh it will force the four to resign —or face expulsion.
Anything less will have severe political reverberations for House members in their home districts. They will not want to spend their fall answering questions about the case. They will want it to go away, as soon as possible.
The case will be resolved, with penalties meted out, but not where it should have been, in a court of law. For that, we can thank Kathleen Kane.