Bench Memos

Pennsylvania AG Turns on Own Law Enforcement Community

Recent months have seen a spate of incidences of politically-motivated dereliction of duty by state attorneys general who refuse to enforce the laws based on their own preferences. What we didn’t know – until now – was how big this pattern of politicization would be.

Answer: Big. The Philadelphia Inquirereports that last year, Pennsylvania attorney general Kathleen Kane spiked an undercover corruption investigation that had recorded several high-profile Philadelphia Democrats accepting money as quid pro quo for contracting or voting. All in all, the investigation’s undercover informant collected 400 hours of damning audio and video. At least four Democrats were recorded taking cash or money order payments ranging from $500 to $2,000, according to the Inquirer.

It’s no surprise that Kathleen Kane is wrapped up in this. She has been a poster child for irresponsible nonenforcement, being one of the first state attorneys general to defy her oath of office by refusing to defend the state’s marriage laws. This political nonenforcement trend is dangerous for the rule of law in an adversarial system, which presupposes a vigorous defense of client interests by both sides, and is even more dangerous in a constitutional system, where the attorney general is the primary official charged with defending democratically-elected laws. 

There’s nothing unusual about declining to file charges if no wrongdoing is discovered, but one of Kane’s defenders admits that there was wrongdoing by these Democrats, calling it “alarming.” That’s all it is? Alarming? Even with hundreds of hours of evidence already in hand, the decision not to prosecute effectively protects Kane’s fellow Democrats without giving them so much as a slap on the wrist.

To make matters worse, Kane tried to deflect blame by playing the race card, accusing an experienced lead prosecutor and the lead investigative agent of racism. Wanton accusations of racism or bigotry are always troubling, especially when leveled by state’s chief law-enforcement officer at those charged with enforcing the law. This accusation is particularly absurd because both the agent and the primary informant were minorities and because at least one white legislator is reported to have accepted a gift as part of the sting. 

Worse still, Kane is now going on the offensive, trying to silence the Inquirer and its sources. On Thursday morning, she made a big show of hiring a well-known defamation litigator to investigate the Inquirer’s sources and gave an interview saying that the “major problem” was really the $20,000 in taxpayer money lost in the sting and the loss of public “trust in their government.” Pennsylvania Democrats should be embarrassed that their attorney general is so threatened by public criticism. It’s hard to imagine that anyone is buying her defense. Even several defense lawyers think this is strange.

The likely effect of all this will be to chill future corruption or ethics investigations of Democrats and any other politicians close to the attorney general. Which is probably the point.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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