Kane challenges special prosecutor's authority in leak case

Pennsylvania Attorney General Kathleen G. Kane said in legal papers Wednesday that the special prosecutor who built a criminal case against her lacked any legal authority and that his work should be discarded as unlawful.

Her lawyers noted that the state law authorizing the appointment of special prosecutors expired a dozen years ago.

Under current law, they said, only the attorney general can lead a statewide investigative grand jury.

This, they said, rendered invalid the decision by a Montgomery County Court judge to appoint lawyer Thomas E. Carluccio as a special prosecutor to investigate whether Kane illegally leaked secret material in an apparent bid to embarrass a critic.

Kane made her case in a 26-page filing to the state Supreme Court. After a grand jury led by Carluccio recommended that Kane face criminal charges, the high court last month barred that from happening until it decided on Kane's challenge to the legality of the process.

Carluccio and the judge who appointed him, William R. Carpenter, are to file written rebuttals Feb. 18. The court has set March 11 for oral arguments.

The grand jurors overseen by Carluccio voted in December to recommend that Montgomery County District Attorney Risa Vetri Ferman charge Kane with official oppression, obstruction, perjury, and false swearing.

The panel said Kane broke the law by leaking the secret material. Kane has acknowledged providing material to a reporter for a story, but said she did this lawfully in a spirit of transparency.

Court papers made public Wednesday showed other legal steps Kane took to challenge the grand jury's work. She sought to quash a subpoena seeking her testimony, lift a protective order regarding witnesses, and win a high court order dismissing the panel, the documents said.

In her filing Wednesday, Kane relied heavily on a 1962 ruling by the state Supreme Court invalidating a special grand jury appointed by a Philadelphia judge to look into graft by the Democratic machine of that time.

The judge created the grand jury in response to a citizens' petition saying the district attorney, a Democrat, had looked the other way about corruption.

Kane, quoting from that opinion, said Carpenter, in appointing Carluccio, had "attempted the impossible because he was making an appointment to a phantom office."

Her filing told the high court that she saw no conflict between that 1962 case and a 2011 ruling by the court.

In the more recent ruling, the court specifically authorized the appointment of a special prosecutor to look into leaks from a grand jury investigating whether a businessman lied about his ties to the mob when seeking a Poconos casino license.

For one thing, Kane's lawyers said, the 2011 ruling was silent about whether a special prosecutor had any support in state laws.

In previous court papers, Carluccio said Kane's position meant that only an attorney general could approve an investigation of an attorney general - creating "glaringly obvious" implications for "continued government corruption or serous breaches of grand jury secrecy."