Oh what a tangled web we weave, when first we practice to deceive, second we cover up the deception, and third we claim to be immune from prosecution.
That, in brief, is the sordid tale of Kathleen Kane—still, as of this writing, Pennsylvania’s attorney general. But Kane’s case may finally have jumped the shark today, as new perjury charges were filed against her by the Montgomery County District Attorney.
Kane stands accused of leaking secret grand jury documents to the press, in order to embarrass a political opponent. In her defense last fall, she testified that even if she did disclose the documents, she couldn’t be charged with perjury, because she hadn’t signed a secrecy oath.
Two weeks ago, Montgomery County detectives found signed secrecy oaths in Kane’s home. Oops.
So now she’s been charged with perjury upon perjury—for being dishonest about her dishonesty.
Pennsylvania Governor Tom Wolf had already called on Kane to resign when the initial charges (perjury, obstruction of justice, conspiracy) were filed in August, but Kane refused.
“A resignation would be an admission of guilt, and I'm not guilty,” she said at the time.
Her argument was twofold: first, the whole mess is an act of political revenge, and second, that she’s immune from the charges anyway because he didn’t have to maintain confidentiality in the first place.
Today, the second rationale just evaporated. Worse, it is now revealed to have been yet another lie. It’s hard to see how Kane can remain in office—but then again, many people said the same thing two months ago.
To be sure, there are no angels here—least of all Kane’s leading opponent, former state prosecutor (and now district attorney) Frank Fina.
From 2010 to 2013, Fina led a sting that captured key Philadelphia Democrats pocketing bribes. Kane shut it down, and dropped all the charges, despite more than 400 hours of incriminating audio and videotape. Fina (according to Kane) leaked that fact to the press, which published the story in March 2014.
Rather than letting the story blow over, Kane struck back, alleging that Fina blew a 2009 investigation of a former NAACP leader. “This is war,” she said, in a private email that has now been made public.
That, the new charges say, is when she leaked the secret information. The details are juicy: unlawful searches of emails, secret documents in unmarked envelopes, growing hit lists of political enemies, political operatives passing grand jury information to the press, and a trove of comments by Kane that have been called “Nixonian” in their paranoia.
But wait, it gets better. Kane has subsequently argued that if she wanted to embarrass Fina, she had a better way to do it—which she has now done.
It turns out, Fina was one of the leaders of the prosecution of disgraced Penn State football coach Jerry Sandusky, who Kane’s office subsequently investigated. As part of that investigation, Kane discovered a treasure trove of pornographic images and borderline-racist emails on Fina’s work computer. Last year, she released some of the damning evidence to the public, but didn’t name names.
Now, she’s named names, Fina’s in particular.
Theoretically, the reason for exposing Fina’s dirty little secret is that it’s part of Kane’s defense. If she wanted to embarrass Fina, the reasoning goes, she had a far better way to do so than leaking grand jury documents. She had porn with his fingerprints on it.
But as the judge in the case observed, this is “far afield” as a legal matter. More likely, the reason for outing Fina is to discredit him in the court of public opinion. Remember, that’s Kane’s only remaining argument: that this is a political hit job.
More likely, as one columnist has observed, this is one of the oldest tragedies in the book: a tale of hubris. Kane could’ve let the controversy blow over but she escalated it. And now, what’s caused her undoing is not the crime, but the coverup.
In fact, Kane’s case is unusual. Prosecutors are normally immune from criminal charges. When they suppress evidence, intimidate witnesses, or otherwise abuse their offices, usually the only remedy is a new trial for the defendant. And because prosecutorial misconduct is often deemed to be a “harmless error,” even that remedy is hard to obtain. In many cases, misbehaving prosecutors remain on the job, and practicing law, for years.
In this case, however, Kane’s misconduct wasn’t part of her doing her job, and so it’s not covered by prosecutorial immunity. She’s already had her law license suspended, which means she cannot file indictments or conduct routine legal work. Amazingly, Pennsylvania’s attorney general can’t notarize a signature.
Even if Kane somehow survives her ordeal, the tawdry details of the case shed light on how much power prosecutors wield, and how much harm they can do. Had her target been an indigent defendant, rather than a fellow prosecutor, Kane’s tactics would likely never have seen the light of day, let alone been prosecuted.
That, perhaps even more than Kane’s alleged crimes, is the real injustice.