Pennsylvania Senate Takes First Step Toward Removing Attorney General Kathleen Kane From Office

City Hall

I had previously written about the Pennsylvania Supreme Court’s suspension of Attorney General Kathleen Kane’s law license.  (see https://legalviewpoints.wordpress.com/2015/09/21/pennsylvania-supreme-court-suspends-attorney-general-kathleen-kanes-law-license-via-emergency-order/). Kane, of course, is facing multiple criminal charges in Montgomery County arising from allegations that she illegally leaked highly confidential grand jury information to the media in an effort to attack a political rival.  Kane has vigorously denied those allegations, but in September, Pennsylvania’s Supreme Court entered an unprecedented order temporarily suspending Kane’s law license in light of the criminal charges pending against her.  Although the Supreme Court effectively precluded the State’s lawyer-in-chief from practicing law, the Order specifically stated that it should not be interpreted as removing Kane from her public office.  Although the Supreme Court passed on removing Kane from office, it looks like the Pennsylvania Senate is positioning itself to do just that.

The Supreme Court’s September Order suspending Kane’s law license went into effect last week.  At the same time her law licenses was being revoked, Kane’s office released her “plan” explaining how she intended to continue in her position as Attorney General without having the ability to practice law. In short, Kane has taken the position that the vast majority of her job as Attorney General comprises of ministerial functions that she can continue to perform without technically “practicing law.”  A lot has been written about this law-versus-ministerial functions distinction.  Much of it critical and many legal scholars have argued that Kane is ethically barred from continuing as Attorney General without a law license.

But words mean little (sticks and stones and all of that) and the Pennsylvania Supreme Court has clearly signaled that it is not the judiciary’s responsibility to remove an elected official from office.  Enter the Senate.  Late last week state republican Senator Joseph B. Scarnati III, announced that the Senate was forming a bipartisan committee to investigate the “impact” the Supreme Court’s Order will have on Kane’s ability to carry out her duties as Attorney General.  In other words, the State Senate appears skeptical that Kane can actually continue in her role as Attorney General without the ability to practice law.

The Committee will issue a report summarizing its findings within 30 days.  If the Special Committee concludes that it is impractical or impossible for Kane to continue in her position without a law license, many suspect that the next step will be to remove her from office. Under the Pennsylvania Constitution, publically elected officials such as Kane can be removed from office by 2/3 vote of the Senate and confirmation of the Governor.  Governor Wolf has made it clear that he believes Kane should resign from office.

Bipartisan or not, it seems highly unlikely that the results of the Special Committee will be favorable to Kane.  Setting aside the political angle, it is difficult to make a compelling argument that the State’s Attorney General can effectively carry out her office without a law license.  And considering Governor Wolf’s repeated public calls for Kane to resign, it is also a stretch to assume he would veto any 2/3 vote by the Senate to remove Kane.

This is not to say that Kane is in imminent risk of being removed from office. The process of removing Kane will certainly take time.   But make no mistake, the Senate’s appointment of a Special Committee is intended to “get the ball rolling,” and Kathleen Kane’s time as Attorney General appears to running short.

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