Thursday, January 15, 2015
Morganelli: Is It Time For Independent Counsel Statute?
There is no question that Attorney General Kathleen Kane has made mistakes. Whether those mistakes amount to prosecutable crimes will initially be determined by Montgomery County District Attorney Risa Ferman and, perhaps, ultimately, by a judge or jury. If the Attorney General is found guilty of crimes after receiving due process, so be it. But with that said, right from the outset, there have been legitimate questions raised as to the process that has led to the appointment of a special prosecutor and now, presumably, a presentment by a sitting grand jury in Norristown. Ms. Kane’s attorney, Lanny Davis, recently cited the Doctrine of Separation of Powers as prohibiting a judge from acting in an executive fashion to investigate another branch of government. Mr. Davis has hinted that the appointment of Thomas Carluccio as a special prosecutor is an illegal appointment under the Pennsylvania Constitution and the aforesaid doctrine. Ultimately, that issue may also be litigated. In the meantime, lawyers in Pennsylvania, including many prosecutors and legal scholars, are also privately questioning the legal basis that has led us to where we are. The questions are numerous: Who initiated the request for the Attorney General to be investigated? Were petitions filed? Why are all of the filings sealed? Why is Attorney General Kane allegedly gagged from speaking about anything including information that could aid in her defense? The public has an absolute right to know the answer to these questions when the elected Attorney General is on the ropes.
Former Chief Justice Ronald Castille has stated that the Supreme Court of Pennsylvania has the power to appoint a special prosecutor to look into grand jury leaks. Admittedly, it has not been unusual for the appointment of a special prosecutor to investigate grand jury leaks. What is unusual in this case, however, is the appointment of a special prosecutor by the judicial branch of government to investigate a sitting attorney general elected by the people of Pennsylvania and who is part of the executive branch of government. In addition, the investigation into grand jury leaks normally would result in a report with recommendations. In this case, however, the leaks out of the current grand jury suggest that a presentment rather than a report has been issued. A presentment is more compelling because it is in the nature of a probable cause determination with a direct recommendation to a prosecutor to charge. As such it is much more significant than a grand jury report.
All of these issues raise the question as to whether Pennsylvania should revisit the enactment of an independent counsel statute which existed for a period of five years between 1998 and 2003. Pennsylvania’s law was known as the “Independent Counsel Authorization Act” (18 Pa.C.S.A. §9301) and established a special independent prosecutor’s panel comprised of various judges of the Commonwealth chosen by lot. Authority was placed in the Commonwealth’s General Counsel to appoint a special investigator under certain circumstances. The Act specifically provided for a process to investigate allegations that the Attorney General may have committed a crime. Pennsylvania’s Independent Counsel Act provided a transparent and legislatively approved process to investigate the Attorney General in the event of alleged wrongdoing. The Act spelled out the full authority of an independent counsel. The law also provided legislative oversight. Unfortunately, the law had a five year sunset provision which expired in 2003 without further legislative action.
In light of the current matter involving Attorney General Kane, the Pennsylvania legislature should revisit this. The former statute was a bit cumbersome and probably should be rewritten. Still it achieved its intended purpose - having a transparent, orderly and legislatively legitimate method of investigating any wrong doing alleged on the part of the Attorney General. The enactment of an Independent Counsel Statute would go a long way in assuring a fair and open process in the future, and would eliminate any speculation that powerful people acting in secret behind closed doors can bring down an independent elected Attorney General.
John M. Morganelli is the District Attorney of Northampton County. He is a past president of the Pennsylvania District Attorney’s Association and was the Democratic candidate for Attorney General in 2008.