Kane faces key Senate hearing Tuesday in bid to oust her

When a Senate committee meets Tuesday to decide whether Pennsylvania Attorney General Kathleen G. Kane should be removed from office, it will be dusting off an obscure provision in the state constitution that has not been used in more than a century.

The seven-member bipartisan committee has asked Kane to defend her position that she can function as the state's top prosecutor even though her law license has been suspended because she is facing criminal charges.

The hearing could be critical to her political future. If the panel decides she can no longer carry out the duties of her office, it could lead to her ouster in a matter of weeks.

On the eve of the hearing, Kane fought back. Her lawyers filed an emergency petition with the state Supreme Court on Monday, asking it to reverse its unanimous decision to pull her law license.

Kane said the decision - which underpins the Senate's actions - was irredeemably flawed because of the participation of Justice J. Michael Eakin, who was later suspended to await the outcome of ethics charges related to his exchange of offensive emails. It was Kane who raised the issue of those messages.

"It is clear Justice Eakin should not have participated in the decision to remove the law license of his accuser," Kane's lawyers wrote in court papers filed Monday.

Kane, 49, the first woman and Democrat to be elected attorney general in Pennsylvania, also contends that the legislature is pursuing an unconstitutional process.

Last week, Kane said she would not appear before the committee. Instead, former Democratic Gov. Ed Rendell has said he was willing to testify on her behalf. But he said late Monday he was unsure if he could clear his schedule to attend because Kane's staff had not contacted him until earlier in the day to confirm his appearance.

Here is a guide to the precedent-setting hearing that could lead to the attorney general's removal from office:

Q: Why was Kane's law license suspended?

A: The state Supreme Court suspended the license last fall at the request of the state board that oversees lawyers.

The board said Kane had engaged in "egregious misconduct" and violated rules of professional conduct, causing "substantial public and private harm." It drew on allegations in the criminal case against her. Kane is charged with perjury, conspiracy, and other crimes for allegedly leaking confidential information in an effort to embarrass a critic, and then lying about it under oath.

Kane has pleaded not guilty. She has blamed her legal troubles on a conspiracy by Republican men who she says want to silence her because of her attempts to expose their participation in a pornographic email ring using state computers.

Q: What is the Senate committee examining?

A: The panel avoided the criminal allegations. Instead, it focused on the narrow question of whether Kane can adequately serve as attorney general with a suspended law license.

The state constitution requires the attorney general to be a member of the bar, but is silent on whether a law license suspension disqualifies someone from doing the job.

Q. What is the constitutional provision the Senate would use to remove Kane?

A: Senate leaders sidestepped the better-known impeachment approach, which would have required the House to bring charges and the Senate to vote on them.

Instead, they invoked a provision of the state constitution that allows the Senate alone, upon a two-thirds vote, to ask the governor to remove certain elected officials from office for "reasonable cause." In contrast, impeachment takes place only upon votes of the legislature, without any role for the governor.

Kane has argued that impeachment, a much lengthier process than the one now being pursued, is the only legal way to remove her.

Q: What is the argument for her removal?

A: Some legal experts - along with high-ranking members of Kane's own staff - say legal decisions are at the heart of her position. They say her inability to work as a lawyer renders her ineffective.

Critics note that lawyers for a handful of defendants in cases brought by the Attorney General's Office have challenged Kane's authority to bring charges against their clients, so far unsuccessfully.

Q. What is Kane's rebuttal?

A: Jonathan Duecker, Kane's chief of staff, submitted testimony to committee members on Monday, saying Kane's duties as attorney general involve much more than legal decisions.

He said she sets policy, personnel, and funding priorities, and - like the governor or other high-ranking elected officials who are not lawyers - views public safety as the core of her mission.

He objected to characterizations of the Attorney General's Office under Kane as "a leaderless, directionless agency."

"The 'engineer for this train' is present, and the office is functioning and serving the commonwealth under Attorney General Kane with distinction, as it was her first day in office," Duecker wrote.

Q: Has the removal provision ever been used?

A: At least once, but the last time was in the 1890s. The attempt was unsuccessful.

Q: What will happen Tuesday?

A: The Senate committee will hold a hearing, where Kane or her representatives - such as Rendell - would be the sole witnesses and have the chance to make their case about why she shouldn't be removed.

Q: Why won't Kane testify?

A: It is likely her defense lawyers in her pending criminal case believed that any testimony by Kane might risk providing prosecutors with information to use against her.

Q: What happens after Tuesday's hearing?

A: The committee has up to 15 days to write a final report and vote on whether the full Senate should vote on her removal.

This timetable suggests the chamber could take up the issue in late January or early February. The chamber may wish to resolve the issue before the week of Feb. 8, when Gov. Wolf is scheduled to deliver his annual budget address to the legislature.

Q. What will the full Senate do?

A. Republicans control 30 seats in the 50-seat Senate (one seat was just vacated, so there are now 49 members). If the party votes as a bloc, Kane's opponents would need to pick up only three Democratic votes to amass the two-thirds majority required for removal.

Q. Will Kane fight the Senate's action in court?

A. That is unclear. While Kane has already questioned the legislature's legal authority to remove her without using the traditional impeachment process, she has yet to file a legal challenge. She still has time to do so, however.

Q. Would a legal challenge keep Kane in office, at least for the short term?

A. That is also unknown. It is possible that the courts could permit Kane's ouster even as they weigh her challenge.

Q. What will Wolf do?

A. Wolf, a Democrat like Kane, said immediately after Kane was criminally charged last August that she should resign. While he is presumably supportive of the Senate's action, he has yet to say what he will do if the Senate votes to remove her.

acouloumbis@phillynews.com717-787-5934@AngelasInk