Documents: Grand jury recommended multiple charges against Kane

Attorney General Kathleen G. Kane denied leaking anything, or lying about it to the grand jury, and noted no reference to contempt of court.
Attorney General Kathleen G. Kane denied leaking anything, or lying about it to the grand jury, and noted no reference to contempt of court. (MATT ROURKE / AP)
Posted: January 22, 2015

HARRISBURG - State Attorney General Kathleen G. Kane could face charges of perjury, obstruction, and other crimes in connection with the leak of confidential information to a Philadelphia newspaper in an apparent bid to embarrass her political enemies, according to court documents unsealed Wednesday.

The documents - providing the first official look at an eight-month investigation of Kane - said a statewide grand jury also recommended that she be charged with false swearing and official oppression.

The jurors' findings are only advisory. Montgomery County District Attorney Risa Vetri Ferman must decide whether to file charges.

Kane, the first woman and first Democrat elected as Pennsylvania's top law enforcement official, on Wednesday denied illegally leaking anything - and denied lying about it afterward in her testimony before the grand jury.

"There was no crime committed," Kane said, adding, "And I made sure to tell the truth."

The four specific charges recommended by the grand jury became public on the same day the state Supreme Court announced it would quickly consider Kane's contention that the special prosecutor who built the case against her had no legal standing to pursue the matter.

Kane has said repeatedly that while she disclosed information to the Philadelphia Daily News about a 2009 grand jury investigation, she did not break the law in doing so.

The recommendation that Kane face criminal charges, first reported by The Inquirer this month, became public as part of an unsealing of documents related to the leak investigation. It was the first time any documents were released publicly since the probe began in May.

In a newly unsealed filing from Dec. 30, Montgomery County Court Judge William R. Carpenter, who oversaw the investigation into the leak, disclosed that the grand jury voted Dec. 18 to recommend criminal charges against Kane, and that he had referred the recommendation in a presentment to Ferman.

Carpenter disclosed this in a bid to rebut Kane's contention that the inquiry into the leak lacked legal authority. Carpenter called Kane's position "moot," pointing out that the grand jury had already voted.

Beyond listing the felony perjury charge and the three other charges, all misdemeanors, the judge provided no details about the alleged actions by Kane that gave rise to the charges.

Kane noted that the charges cited by Carpenter did not include contempt of court. She said this meant she had been cleared of violating the law for the leak itself.

"They started looking for a grand jury leak," she said. "They can't find a grand jury leak, so they go and make things up. That's exactly what just happened."

Lanny Davis, Kane's personal lawyer and spokesman, made the same deduction. He blasted the special prosecutor in the case, Thomas E. Carluccio, who was appointed by Carpenter.

Davis called the recommended charges "the last refuge of a desperate prosecutor who has struck out."

"He invests all this time, all this money, and comes up empty," Davis said. "All he has left is bogus charges of perjury and obstruction, etc., etc."

Davis acknowledged that Kane's lawyers had not seen the actual presentment, but stressed that he found the omission of a contempt charge significant.

"It's an inference from an omission," he said, referring to his assertion that Kane had been cleared of illegally leaking information.

Carpenter, a Republican and former county top prosecutor, declined comment Wednesday. Carluccio, also a Republican, could not be reached for comment.

In its Jan. 9 article, The Inquirer cited people familiar with the case as saying the grand jury presentment had recommended charges that included perjury and contempt. The full text of that document remains under seal.

Kane, in Philadelphia on Wednesday to announce the arrests of 22 people charged with running a statewide OxyContin ring, said in response to a question that she would not quit her post.

"No, I won't resign. I promised people of Pennsylvania that I would fight public corruption," she said. "That is exactly what this is.

"Court systems are being used to overturn an election of somebody they just don't like," Kane said. "Quite honestly, if they can do it to me, they'll do it to someone else."

The documents made public Wednesday mainly focused on a legal debate launched by Kane as she questioned the investigation on the ground that Carpenter "unlawfully and unconstitutionally exceeded his authority in appointing a special prosecutor."

The investigation into the leak was approved by Ronald D. Castille, a Republican who was then chief justice of the state Supreme Court.

Under the separation of powers set forth by the state constitution, only the attorney general is authorized to lead a statewide grand jury investigation, Kane's legal team said in court papers. While district attorneys may be permitted to lead a leak inquiry, her lawyers said, Carpenter had overstepped his power.

Kane's lawyers said Pennsylvania has no law authorizing appointments of special prosecutors.

In rebuttal, Carpenter said the state Supreme Court had routinely approved the appointment of special prosecutors to investigate leaks in recent years.

In the last decade, special prosecutors have pursued leaks in grand juries three times under Republican attorney generals and once under a Democratic county prosecutor.

For his part, Carluccio dismissed Kane's arguments as "self-serving" and "nonsensical."

Under her theory, he wrote, only the attorney general could direct a grand jury to investigate the Attorney General's Office - an interpretation he called "illogical" and rife with conflicts of interest.

"The implications for continued government corruption or serious breaches of grand jury secrecy, unabated by the review of a grand jury, such as here, are glaringly obvious," Carluccio wrote.

The attorney general, the judge, and the special prosecutor made their arguments in sealed filings to the state Supreme Court, which were made public Wednesday.

Late Wednesday afternoon, the high court issued the order saying it would decide the matter quickly.

Davis said he and Kane welcomed that. "We see this as recognition that this is a serious constitutional question as to whether the judge, as a member of the judicial branch, acted lawfully when he appointed a special prosecutor," he said. "We welcome a chance for a fair hearing."

After a landslide election in 2012, Kane faced strong criticism after The Inquirer disclosed that she had secretly shut down an undercover sting investigation that caught five public officials on tape taking cash or, in one case, a $2,000 bracelet from a lobbyist seeking government contracts.

The case was overseen by Frank G. Fina, a top prosecutor in the Attorney General's Office who left after Kane took office in 2013.

The June 2014 Daily News story at the center of the leak inquiry suggested that Kane's office was seeking to determine whether a 2009 investigation case had been bungled by Fina and others.

In her defense, Kane's lawyers have argued in part that she was a mother at home in 2009, when the case was unfolding. Since she did not take a grand jury secrecy oath in the case, they say, Kane was not subject to confidentiality rules.

Critics of this view, including Castille, have said that position would make a mockery of grand jury secrecy.


acouloumbis@phillynews.com717-787-5934

Inquirer staff writer Matt Gelb contributed to this article.

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