Special prosecutor: No criminal charges likely in porn scandal

Attorney General Kathleen G. Kane , who in 2014 discovered the swapping of troubling emails. MICHAEL BRYANT / Staff Photographer
Attorney General Kathleen G. Kane , who in 2014 discovered the swapping of troubling emails. MICHAEL BRYANT / Staff Photographer
Posted: March 02, 2016

The special prosecutor hired by Pennsylvania Attorney General Kathleen G. Kane to examine the evidence in the pornographic email scandal says it is unlikely he will bring criminal charges against anyone involved.

Douglas F. Gansler, in an interview Monday, said bringing charges under obscenity statutes would be far-fetched. Such prosecutions have become fairly rare nationwide, he said.

As for the former or current officials who swapped pornographic or otherwise offensive emails on government computers, Gansler said their conduct might violate workplace rules, but was hardly criminal.

He said the government workers might have committed a "policy violation, possibly an ethics violation," but not a crime.

Gansler's comments about the narrowing scope of his mission come as tension continues to simmer between him and the Kane aides who objected to his appointment.

In a separate interview Monday, Chuck Ardo, the official spokesman for the Attorney General's Office, raised doubt about whether Gansler had legal authority to prosecute in any event.

He noted that Gansler, a lawyer based in Washington who is the former attorney general of Maryland, does not have a Pennsylvania law license and would need court permission to practice in the state.

Ardo said the agency had dropped plans to sign a contract with Gansler codifying his role as special prosecutor. Instead, he said, Gansler is to be paid as part of the office's overall contract with Gansler's law firm, Buckley Sandler L.L.P.

Gansler is being paid $76 an hour for his work, or $3,040 for a 40-hour week - a rate derived from Kane's salary. He has said his work and that of his firm could cost as much as $2 million. He said he could not be more precise.

Ardo said agency lawyers had concluded that signing a contract with Gansler in addition to one with his firm could violate a state law barring contractors from steering work to firms with which they are affiliated.

Gansler, for his part, said he could easily obtain court permission to practice law in Pennsylvania if necessary. But he said that the dispute over whether he had authority to prosecute was moot, because he did not expect to bring any charges.

"That's why it's all nonsense," Gansler said of the debate. "We're talking about something unlikely."

In announcing Gansler's hiring at a December news conference at the National Constitution Center, Kane said she had armed him with "the sword of prosecutorial power."

Gansler declared: "If crimes are uncovered, we will prosecute them."

In the interview Monday, Gansler decried the opposition from senior Kane aides, who have been raising questions about his legal standing. He called them "people who have been trying to obstruct this investigation from the beginning."

Gansler said he still intended to make public every offensive email and identify all recipients and senders. He said it was "very possible" he could do that before the start of Kane's criminal trial in August.

Kane is awaiting trial on state charges of perjury, obstruction, and other crimes. Prosecutors say she illegally leaked grand jury material to embarrass a political ally and then lied about it under oath. She has pleaded not guilty.

The attorney general has said former state prosecutors "corruptly manufactured" the case against her, seeking to block her from making public their exchange of porn.

In 2014, her second year in office, Kane discovered that her office's computer server had for years been a hub for the swapping of troubling emails, which had been circulating among state and federal prosecutors, judges, defense lawyers, and others.

The scandal that followed her disclosure has cost several top officials their jobs, including a state Supreme Court justice. None was criminally charged, but all were either fired or forced out of office under public pressure.

Northampton County District Attorney John Morganelli, one of three candidates seeking the Democratic nomination to succeed Kane, has called for Gansler's work to be shut down, saying it is a waste of taxpayer money. Kane is not seeking reelection.

While the email traffic was reprehensible, Morganelli said, it was clear there was nothing to prosecute.

"There has never been the slightest indication that any of the material contained child pornography, which is a crime," he said last month. "Adult pornography is generally viewed as legal and non-prosecutable."

On Monday, he added: "You don't charge the taxpayer $2 million to investigate bad behavior. It's ridiculous. This is just moneymaking for the law firm. This thing is nuts."

cmccoy@phillynews.com

215-854-4821 @CraigRMcCoy

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