HARRISBURG, Pa. — In an unprecedented move, the Pennsylvania Supreme Court on Monday temporarily suspended the law license of Attorney General Kathleen Kane, the latest setback for the state’s embattled top law enforcement officer.
The decision was unanimous, winning support from the court’s three Republicans and two Democrats.
Lawyers for the state Disciplinary Board, which oversees attorney conduct, had sought the suspension after Kane was charged last month with perjury, obstruction and other charges stemming from the leak of confidential grand jury material and an investigation into that leak.
The board contended that allowing Kane to remain in office while under criminal charges would damage the administration of justice and cause “immediate and substantial public harm.” Its lawyers suggested that stripping Kane of her law license would disqualify her from holding office.
The Supreme Court, however, said its order “should not be construed as removing (Kane) from elected office and is limited to the temporary suspension of her license to practice law.”
The suspension means she is barred from making legal decisions — or signing legal documents — for the office. She can, however, continue carrying out administrative duties, making personnel decisions and deciding how money is spent.
But the state constitution requires that the attorney general be a member of the bar, raising questions about Kane’s qualifications to stay in office.
In a statement, Kane said she was disappointed in the ruling but “grateful” the court recognized her rights as an elected official and citizen.
She continued: “The court, in specifically recognizing my continuing authority as Attorney General of the Commonwealth, today allows me to continue the good works of this office: work which has transformed our war on sex crimes and fraud; work which will also root out the culture of misogyny and racially/religiously offensive behavior that has permeated law enforcement and members of the judiciary in this Commonwealth for years.”
Kane has previously blamed the criminal investigation and attacks against her on her decision to expose public employees and officials who shared pornography on government time and computer accounts.
James F. Mundy and James J. Powell III, her lawyers in the disciplinary matter, said there was “another side to this story” and that they hope Kane gets an opportunity to tell it. “Then, and only then, will the public have a fair opportunity to judge the facts,” they added. “We are confident that once that happens, Attorney General Kane will be exonerated.”
The lawyers have argued that suspending her license would violate her due process rights and effectively circumvent the constitutional provision for removing a public official from office. Kane, a Democrat in her first term, was elected in 2012.
Legal experts disagree about whether the high court’s ruling means it will not act to remove Kane from office.
In interviews, some said they believe the justices could consider a new motion — perhaps filed by one of Kane’s critics among district attorneys — to force her ouster. Others said they thought the justices had no legal authority to remove her or had made it plain they were extremely reluctant to do so.
Still, there was consensus that the suspension could be devastating to Kane.
John M. Burkoff, a professor at the University of Pittsburgh School of Law, said “the dramatic psychological, emotional and political impact of this order on the office and the attorney general herself has to be enormous.”
“This is an incredible and almost unthinkable development,” he added. “What little credibility Attorney General Kane retained prior to today has just been subjected to a crippling body blow.”
Bruce Ledewitz, a law professor at Duquesne University, said the Supreme Court had handed a powerful weapon to the state Senate to invoke a never-used provision in the state constitution to remove Kane from office.
Under the constitution, officials other than the governor, lieutenant governor and legislators can be removed from office by the governor “for reasonable cause, after due notice and full hearing, on the address of two-thirds of the Senate,” the constitution states.
The removal provision in the constitution, in its current form, has never been used.
Ledewitz said that with Kane’s suspension, legislators could remove her simply on grounds that she had lost her law license, avoiding a judgment about her guilt or innocence.
“The court’s action is a setup for the Senate to act,” Ledewitz said. “I think that was intended by the court.”
Though the court’s action Monday put Kane’s license in limbo only until the outcome of her criminal case, Ledewitz pointed out that the Senate rules provide for only one step: outright removal from office.
Should the chamber take that step, it could open the door to a scenario under which Kane was removed from office — but later acquitted at trial. Ledewitz said the court erred in taking action against Kane ahead of any trial, but that he nonetheless found the outcome puzzling.
“What’s the point of suspending her if she remains attorney general?” he asked.
Senate Republicans have been researching their authority and the steps to remove the attorney general, according to Drew Crompton, a top lawyer for the GOP. And though he called Monday’s developments “significant,” Crompton said the question of whether to remove Kane from office is “going to need a lot more conversation.”
“We are not going to act rashly,” he said. “At this point, we don’t even have the parameters set from her office as to what she can do and what she cannot do with a suspended license.”
Kane, 49, is awaiting trial in Montgomery County on charges she illegally leaked confidential documents to a Philadelphia Daily News reporter in a bid to embarrass a critic, then lied about it under oath.
As a grand jury investigated Kane’s conduct, prosecutors say, she ordered aides to spy on the emails of people involved in the probe, including witnesses and the special prosecutor who was handling the case.
Kane has pleaded not guilty and vowed to remain in office, despite calls from top Democrats, including Gov. Tom Wolf, for her resignation.