By Lizzy McLellan, From The Legal Intelligencer

Pennsylvania Attorney General Kathleen Kane has been charged with crimes related to a scheme to leak confidential investigative information, as well as lying to a grand jury, Montgomery County District Attorney Risa Vetri Ferman announced Thursday.

Kane was charged with obstructing administration of law or other governmental function, official oppression, criminal conspiracy, perjury and false swearing, according to charging documents.

At a press conference in Norristown, Ferman said Kane leaked confidential investigative information and secret grand-jury materials to political operatives in order to embarrass former state prosecutors who she believed had made her look bad.

“This was her war, based upon the evidence, conducted without regard to the rules, without regard to the law and without regard to any collateral damage the battle might entail,” Ferman said.

Ferman said Kane would surrender and be arraigned by Magisterial District Judge Cathleen Kelly Rebar, likely within the next two days. She said Kane’s attorneys have been cooperative.

Gov. Tom Wolf called for Kane to resign Thursday. He said the charges are serious and Kane is entitled to her day in court.

“But in the meantime, I am calling on her to step aside, step down as attorney general, because I think she cannot do what she has to do as the top law enforcement officer in Pennsylvania while she’s facing these serious charges,” Wolf said.

Kane, however, said in a statement Thursday that she was disappointed in Ferman’s decision and has no plans to resign.

“I intend to defend myself vigorously against these charges,” Kane said. “I look forward to the opportunity to present my case in a public courtroom and move beyond the behind-the-scenes maneuvering that has defined the process to this point.”

Kane’s attorney, Gerald L. Shargel of Winston & Strawn, said Kane intends to enter a plea of not guilty. He also said Kane committed no crimes and was not involved in any conspiracy.

“With all due respect to Mrs. Ferman’s statement, cases are decided by juries, not prosecutors,” Shargel said. “Our position is, put this before a fair-minded jury. We expect a fair-minded verdict, which would be a verdict of not guilty.”

Philadelphia District Attorney R. Seth Williams, one of the prosecutors Kane allegedly targeted with her leak, said in a statement Thursday that it was a bad, but bright day for law enforcement.

“I’m gratified that the legal process is now proceeding on a proper course,” Williams said.

Ferman also filed a charge of indirect criminal contempt against Patrick R. Reese, a supervisory special agent for the Attorney General’s Office who serves on the executive protection detail and as Kane’s driver. Reese was charged with violating a protective order by secretly accessing confidential grand-jury information related to the leak investigation while the special prosecutor’s investigation of Kane was ongoing. He is set to be arraigned by Judge William R. Carpenter.

Ferman said the investigation is still ongoing and others may be arrested.

During the press conference, Ferman noted assistant district attorneys from Bucks County will be helping with the prosecution, and Bucks County District Attorney David Heckler confirmed first assistant district attorney Michelle Henry and deputy district attorney Antonetta Stancu will be joining Ferman’s team.

Heckler said Stancu, who formerly worked as an assistant U.S. attorney for the Eastern District of Texas and as a special prosecutor to the Montgomery County District Attorney’s Office, has extensive knowledge of federal grand-jury practices and was familiar with Ferman’s office.

Heckler added Henry is “absolutely lethal” as a trial attorney.

“There’s always been a good close relationship between the two offices,” Heckler said.

Allegations

According to the affidavit of probable cause against Kane, investigators found that the information was released as a way of retaliating against state prosecutors, including former chief deputy attorney general Frank G. Fina. The affidavit said Kane had blamed Fina for a March 2014 article published in The Philadelphia Inquirer, which was critical of Kane for shutting down a public corruption probe that had resulted in an informant tape-recording state officials allegedly receiving bribes.

According to the charging documents, Kane initiated a review of a 2009 investigation into former NAACP head J. Whyatt Mondesire, which Fina had been involved in. Kane then authorized the release of certain confidential documents from the investigation “in order to retaliate against someone she believed had made her look bad in the press,” the district attorney alleged.

The affidavit said Kane’s motive for releasing information was clear in an email exchange between her and a media strategist.

“In the emails, which were regarding Kane’s response to the March 16, 2014, Philadelphia Inquirer article, Kane wrote, ‘I will not allow them to discredit me or our office,'” the affidavit said. “Kane concluded the email by writing, ‘This is war.'”

After Kane’s decision to shutter the probe, Williams asked Kane to refer the cases to his office. According to the affidavit, this raised the ire of Kane, and during an email exchange with a media strategist, she indicated that she wanted to make “Seth pay.”

The charging documents also said Kane made false statements when testifying before the 35th Statewide Investigating Grand Jury.

The affidavit said she lied when she said she had never seen the 2009 memorandum before and when she minimized her involvement in leaking secret documents to the press. It also alleged she falsely testified that she first read the Philadelphia Daily News article about the leaked documents two months after its publication, and that the release of information from the Mondesire case was unrelated to the public corruption probe her office shuttered.

However, according to the affidavit, former first deputy attorney general Adrian R. King Jr. testified Kane became obsessed with the Mondesire investigation and the prosecutors who were involved in the wake of the March 2014 article.

The affidavit also said Kane tried to “derail” the grand jury investigation and threatened her employees with termination if they did not follow her orders not to cooperate with the grand jury.

Ferman also brought charges Thursday against Reese. According to the Reese affidavit of probable cause, Reese conducted searches of a restricted email archive seeking information related to the grand jury that had investigated Kane even after the supervising grand jury judge had issued a protective order holding that the OAG should not have access to transcripts or information regarding the grand jury investigation.

The affidavit said Reese’s searches about the investigation intensified between Sept. 9 and Dec. 9, 2014, and “were clearly directed at gaining access to information they were prohibited from knowing.”

Continuing Prosecutions

Obermayer Rebmann Maxwell & Hippel partner Walter Cohen served as the first deputy attorney general under former Attorney General Ernie Preate when Preate was being investigated for political corruption.

Cohen said Kane’s situation is much different from Preate’s, who was under investigation for a year-and-a-half and then stepped down the day he was charged. He noted Preate was charged with a federal information and agreed to a plea.

Cohen said it seemed hypocritical that everyone was focusing on Kane leaking documents when the grand jury presentment against her was leaked and there doesn’t seem to be an investigation into how or by whom.

Northampton County District Attorney John Morganelli said public officials will likely increasingly express a lack of confidence in Kane, which could make her job more difficult. But, any decision to resign is personal, he added.

“It’s unfortunate and uncomfortable, but we will have to wait and see what AG Kane’s judgment will be,” Morganelli said.

As to whether the productivity of the Attorney General’s Office will be hampered by the charges against Kane, Cohen said they have already been operating under the cloud of suspicion and should be able to continue to function now that the charges are official.

“I don’t see that it is really any worse because … everybody knew that this was going to happen,” Cohen said.

District attorneys also agreed that the charges will likely not affect the day-to-day operations and cases already in progress.

Heckler said, “The AG’s office is blessed with a capable staff who will keep soldiering on no matter what is happening at the top.”

IMAGE: Pictured, from left, are Montgomery County First Assistant District Attorney Kevin R. Steele, Bucks County First Assistant District Attorney Michelle Henry, Montgomery County District Attorney Risa Vetri Ferman and Bucks County Deputy District Attorney Antonetta Stancu at a news conference Thursday in Norristown.

Photo by Lizzy McLellan

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