Kane's position on porn emails is elusive

In December, a judge issued a confidential opinion to state Attorney General Kathleen Kane: You can put out the porn.

"It all should be released," the judge wrote.

The same month, the state Supreme Court agreed.

Nonetheless, Kane told the public in August that she fervently wanted to release all the "filthy" material but that the courts were standing in the way.

Exasperated, the jurists then made their previously private decisions public.

And last week, Kane again proclaimed her desire to name the porn recipients - even as her taxpayer-paid lawyers argued in court that the recipients' identities and the emails should remain private.

Figuring out Kane's precise posture on the cascade of pornographic emails exchanged among office prosecutors, detectives, and other staffers has been a very difficult business.

Kane, the first woman and Democrat elected attorney general, has insisted she wants to name names and shame the porn "peddlers." Yet so far, the people she has mainly highlighted as recipients of the salacious emails have been a small group of political foes and state officials with ties to them.

"She's been completely inconsistent," said Simon Campbell, a civic activist rebuffed by Kane in seeking information about the emails. Her lawyers have rejected separate right-to-know requests filed by Campbell, The Inquirer, and other newspapers.

"There's something very fishy going on with this," Campbell said. "Why is she fighting tooth and nail with The Inquirer and with me to try to hide the names?"

After learning about the emails early last year, Kane equivocated for months about whether to go public.

Finally, among the hundreds of recipients over a decade, both on and off her staff, in and out of public life, Kane in September 2014 identified eight.

They all had worked for former Gov. Tom Corbett, a Republican, when he was attorney general. After the embarrassing disclosure, five lost their jobs.

Next, Kane fired, suspended, or admonished 61 of her own employees over the porn. She named only four, clerical workers, saying labor agreements barred her from identifying others.

Under pressure from Republicans on the state Supreme Court, Kane belatedly disclosed that the email participants included Seamus McCaffery, a high court justice and Democrat. He lost his job, too.

But court documents show Kane seemed mainly fixated on identifying a former top prosecutor in her office, Frank Fina, with whom she was feuding.

Kane was charged last month with perjury, obstruction, and other crimes for allegedly leaking secret grand jury information to a newspaper in a bid to plant a story critical of Fina.

She has blamed Fina for leaking information harmful to her political image and for sparking the criminal case she faces.

She has also complained about a judicial protective order - banning intimidation of witnesses in her criminal case, including Fina - saying it prevented her from naming him as a porn recipient.

Finally, she got her wish. Last month, the Supreme Court, acting after Kane complained that she had been unfairly muzzled, made public hundreds of pages of previously secret court pleadings related to the investigation of her. Notably, they included her filings linking Fina to the porn, filled with explicit descriptions of the X-rated material.

In those filings, Kane left no doubt that she believed Fina, once a leading state prosecutor of official corruption, should be fired over the pornographic emails. He now works for Philadelphia District Attorney Seth Williams.

The head of the Philadelphia chapter of the National Organization for Women agreed. "When you have poison ivy, you have to cut it off from the roots," Nina Ahmad said recently. "Otherwise, it just grows back."

Williams has stood by Fina. Though Kane says Fina was at "the core of this email chain," Williams said his participation was little different from scores of others involved in the exchanges.

Kane has been selective about firing members of her own staff.

According to her office, she fired only six of the 61 disciplined staffers, reserving dismissal for the few who exchanged X-rated material after being warned to stop.

Critics wonder how fairly Kane has meted out punishment. Last week, Chuck Ardo, her spokesman, acknowledged one of her most senior aides had received pornographic emails in 2009 but had not been disciplined.

Ardo spoke up after The Inquirer obtained copies of three emails sent to the aide, a highly paid top prosecutor, and provided them to the Attorney General's Office.

Ardo said the top aide had been spared because he had received only a handful of X-rated messages and had asked the sender to stop. The aide told The Inquirer he had received "six, maybe more" emails.

Yet documents released by Kane show that some of those who were disciplined also had had very light involvement with the porn, at least in recent years - in fact, five had neither received nor sent a single X-rated message for four years or more.

Kane has been sharp in her criticism of the judicial branch in its handling of the porn issue. Last month, she blasted unnamed judges who she said had "wittingly or unwittingly" blocked "the complete public dissemination of these emails."

Then the courts made public her filing in which she went after Fina on the porn issue.

This month, Kane went to court to fight the release of the messages.

In a Wednesday appearance before state Commonwealth Court, her lawyers fought back against an Inquirer right-to-know filing for the material. They said the messages weren't public records because they didn't reflect official office business.

Terry Mutchler, a lawyer for The Inquirer, called it all "forked-tongue advocacy."

"To me, it's right out of the Wizard of Oz," she said. "What's bizarre is that you have lawyers advocating a position here that appears to be in direct opposition to what their client says she wants."

The court has yet to rule but expressed concerns about making the release of the material mandatory as public records.

Shortly after the hearing ended, Kane issued a statement saying, "I want the release of all the emails."

She also noted that, under her discretionary powers as attorney general, she could release material even if she was not legally bound to. This power means Kane conceivably could make the emails public even if her lawyers prevail and the Commonwealth Court rules the material is not public.

But then she said she would not use that discretionary authority, the very power she used last September to name the eight officials tied to Corbett.

She said last week, however, that to release all the material could put her at legal risk of violating that protective order.

Montgomery County Judge William R. Carpenter, who issued the order, has said flatly that Kane could put out the porn names, provided her accounting was complete.

"The problem surrounding public discourse has occurred because Attorney General Kane has cherry-picked which and whose emails to selectively release," Carpenter wrote in a Dec. 12 court filing.

He added: "In fact, it is my belief that all of the inappropriate images and information related thereto should be appropriately released."

cmccoy@phillynews.com

215-854-4821@CraigRMcCoy