Kane refuses to cooperate with Senate committee exploring her ouster

Pennsylvania Attorney General Kathleen G. Kane is refusing to cooperate with a Senate committee examining whether to remove her from office, saying it lacks the authority to decide if she can remain in the position to which she was elected.

In a densely worded letter, Kane on Friday rebuffed the panel's request for documents from her office. She said the committee had no jurisdiction.

The only legal means to remove an elected official, Kane said, is impeachment, a process that begins in the state House of Representatives.

"This committee has no authority under the Pennsylvania Constitution and the long-standing precedent to remove an attorney general by means other than impeachment," wrote Kane, a Democrat.

The Senate is exploring using a more obscure provision, known as "direct removal," that its Republican leaders say would permit her to be ousted by action of the Senate and the governor, with no role for the House.

Kane's letter, sent to the committee's chairman, came in response to its request that she turn over numerous records, including emails, regarding the suspension of her law license.

The state Supreme Court temporarily suspended Kane's license after she was charged with perjury and other crimes in August for allegedly leaking secret grand jury information.

It was unclear Friday how the standoff will play out. The Senate committee could test Kane's resolve by subpoenaing her to appear before them. Or she could press her case against their authority in court.

In her letter, Kane misstated the law regarding impeachment, saying officials in Pennsylvania may be impeached only after a criminal conviction. In fact, the constitution allows impeachment for "any misbehavior in office."

The Senate committee - a seven-member bipartisan panel - was formed last month as the first step toward Kane's possible removal from office.

Senate leaders also kept the committee's focus narrow. Rather than weighing her alleged crimes or other controversies, the panel is charged only with exploring whether Kane can continue to be the state's top law enforcement official while lacking an active law license.

Senate lawyers have said that if the committee determines she can no longer do her job, it could hold a hearing to determine whether she should be removed from office. The full Senate would then vote, and it would take a two-thirds vote to remove her.

The state constitution allows the Senate and governor to remove certain top elected officials for "reasonable cause."

In her letter, Kane noted that the constitution excludes the governor, lieutenant governor, legislators, and judges from the removal provision, leaving only impeachment as an option for them.

Kane contended that the only reason the attorney general is not on the list of exceptions is that the office was not an elected position when the removal clause was first included in the constitution in the 1870s.

The attorney general's job became an elected one in 1978, but the removal clause was never amended to reflect that change, she argued.

"An attorney general . . . is an elected officer and a high-ranking member of government who surely is impliedly included," Kane wrote.

Even so, the removal clause does not exclude the other two statewide elected row officers - the auditor general and the treasurer - though both positions have been elected ones for over a century.

The only allowable process to remove her from office is impeachment, she wrote.

"What is done today will in essence affect the future of Pennsylvania and its citizens long after these decisions are made," Kane wrote.

Drew Crompton, the Senate's top Republican lawyer, said Kane's contention that her office should be excluded from the removal clause was incorrect.

"That may be her wish," said Crompton, but "I don't think she grounds that in any constitutional or case law whatsoever. It seems as if she makes the argument that it should be that way, and therefore it is that way."

Bruce Ledewitz, a professor at the Duquesne University law school and an expert on the state constitution, said Kane made a weak legal argument. While she might wish that the constitution had listed her job as one of those exempt from the removal clause, it did not, he said.

"The text here is completely unambiguous," Ledewitz said. "She is taking the position that the provision doesn't mean what it says."

On Friday, the committee sent Kane a subpoena for documents, but was told that no one in her office had the authority to accept it on her behalf. In the end, her private defense lawyer accepted it. The committee has its first hearing Monday.

Kane has contended that the majority of her duties are "administrative and ministerial," and that she can continue to do her job even with a suspended license.

There is no doubt that the Senate is moving on a rarely used path.

It appears that the direct-removal provision was last used in 1891, when Gov. Robert Pattison invoked it to try to remove the state treasurer and auditor from office. The two had been accused of taking bribes from Philadelphia's city treasurer.

Like Kane, both men pointed out that they had not been convicted of any wrongdoing, only accused of it. In the end, the Senate voted by 28-19 not to remove them.

acouloumbis@phillynews.com

717-787-5934 @AngelasInk