Kane lawyer has new theory on leaking grand jury information

HARRISBURG - Attorney General Kathleen G. Kane could not have broken the law by leaking information this year about a secret 2009 investigation, because she was not in office when that probe occurred, one of her lawyers asserted Tuesday.

In an interview, Lanny Davis suggested that because Kane was at home raising two children in 2009, she was not bound by the secrecy laws that bar the release of grand jury information. Davis said that responsibility did not start until Kane took her oath of office last year, and applies only to subsequent cases.

"It is our legal opinion that there has never been a case decided where a succeeding attorney general has been accused of violating an oath that she never took," said Davis, who said the theory was based on legal research by himself and Kane's other attorney, New York defense lawyer Gerald Shargel. Davis cautioned that he was speaking in general about the legal framework facing prosecutors when they weigh the disclosure of possible grand jury information.

One veteran Philadelphia lawyer, L. George Parry, called the theory "an absolutely silly argument."

"That is ludicrous," said Parry, who as a state prosecutor supervised grand juries in two counties.

He noted that Kane took an oath to support the laws of Pennsylvania. If secrecy expired with each new attorney general, Parry said, "then it would seem to me, the whole concept of grand jury secrecy is nothing more than a mirage."

On Monday, Kane testified for more than two hours before a Montgomery County grand jury examining if she or her office improperly released confidential information to the Philadelphia Daily News in June to embarrass a political foe.

Unexpectedly, she acknowledged on her way to testify that her office had released information to a newspaper - but added that she did not believe it was grand jury material.

It is now up to the special grand jury to sort out what happened. The panel expires in a few weeks, sources have told The Inquirer.

The stakes are high: Attorneys or other court officials involved in the grand jury process who are found to have violated secrecy rules face jail time.

The details of the case, like Kane's testimony, remain sealed.

But Davis, a Washington lawyer who won fame as special counsel to President Clinton in the 1990s, argued Tuesday that not all information disclosed by Kane about the 2009 case was necessarily secret. For instance, he said, summary memos, written years after a probe concluded, could very well be public documents.

The Pennsylvania Supreme Court has underscored the importance of secrecy in grand jury investigations. Among other reasons, the high court has said in various rulings, the secrecy is designed to encourage "free and untrammeled" testimony by witnesses, and to protect people who are never charged from the disclosure that they had been investigated.

State grand jury rules say prosecutors must get a supervising judge's approval if they want to share grand jury information with other law enforcement agencies investigating crimes.

"Otherwise a juror, attorney, interpreter, stenographer, operator of a recording device, or any typist who transcribes recorded testimony may disclose matters occurring before the grand jury only when so directed by the court," the grand jury law states.

The leak case in question involved an investigation launched by Kane's Republican predecessors into the finances of former Philadelphia NAACP president J. Whyatt Mondesire. The case was led by Frank G. Fina, a former ranking prosecutor in the Attorney General's Office.

Kane and Fina have been engaged for months in an increasingly bitter battle over how a number of cases were handled.

Mondesire was never charged.

Five years after the probe ended, the Daily News, citing sources, ran a story that Kane was reviewing how Fina conducted the case. The story quoted extensively from a 2009 investigative memo in the case.

While leaks from government officials are not unusual in Harrisburg - and other places where reporters and officials interact - they rarely turn into news stories themselves or become the subject of criminal investigations.

But when they do, the results can be explosive. In the most well-known case, a federal grand jury indicted Vice President Dick Cheney's chief of staff in connection with leaks that revealed the name of a CIA operative. A jury convicted I. Lewis "Scooter" Libby, but his 30-month prison sentence was commuted by President George W. Bush.

In 2009, a special prosecutor investigated alleged leaks from a Dauphin County investigative grand jury examining whether Scranton-area businessman Louis DeNaples lied about ties to organized crime while competing for a casino license.

Despite obtaining phone records of investigators and reporters, the special prosecutor, Albert Blakey, was unable to figure out who leaked the information. Blakey said at the time that Pennsylvania's Shield Law, which protects journalists from naming confidential sources, had been a big obstacle.

In 2007, Judge Barry Feudale became the only judge to jail a suspect in a leak investigation. James Kolojejchick, a former narcotics agent with the Office of the Attorney General, was held in contempt for sharing grand jury testimony with a reporter at the Scranton Times and Tribune in January 2004.

Kolojejchick, who revealed material about a probe of prison conditions in the Lackawanna County jail, was imprisoned for 10 days - what officials then believed was the maximum possible sentence. Since then, however, courts have decreed that the maximum sentence could be six months in jail.