Kane investigation began with letter from former top state prosecutors on suspected leaks
HARRISBURG — For almost six months, it remained a mystery how a statewide grand jury investigation of Attorney General Kathleen Kane began.
Special prosecutor Thomas Carluccio unceremoniously provided the answer in a document filed last month with the state Supreme Court — a letter from former top state prosecutors Frank Fina and E. Marc Costanzo, long at odds with Kane, telling Montgomery County Judge William Carpenter that someone likely “committed a serious crime” by releasing secret grand jury material.
The May 8, 2014, letter told Carpenter that a Philadelphia Daily News reporter inquired about an email between Fina, Costanzo and prosecutor William Davis that “contained a lengthy review of the evidence and testimony” from a 2009 grand jury investigation they handled.
“The email contained extensive evidence and information that clearly fall within the ambit of grand jury secrecy,” Fina and Costanzo wrote. “The reporter stated that he had a copy of the email and he even recited from it when questioned about the contents. ... We can assure the court that none of us disclosed this email.”
A few weeks later, Carpenter, who oversaw a statewide grand jury, appointed Carluccio as a special prosecutor to investigate leaks by Kane's office.
Fina and Costanzo did what prosecutors are expected to do when they come across apparent violations of grand jury secrecy, former prosecutors said.
Yet Kane's supporters contend the document may bolster their argument that her political foes wanted to take her down.
The letter from Fina and Costanzo, now employed by the Philadelphia district attorney, did not mention Kane or the Attorney General's Office.
The Supreme Court is considering Kane's request to void Carluccio's appointment and kill a sealed grand jury presentment recommending that she be charged with perjury, obstruction of justice and other crimes.
“I have no idea who did what,” said Rep. Eddie Pashinski, a Wilkes-Barre Democrat. “But in talking to people back home, where people like her, most people think Kathleen Kane is being railroaded.”
Kane, from Clarks Summit near Scranton, is Pennsylvania's first female and elected Democratic attorney general. She maintains she did nothing illegal.
Kane authorized releasing a 2014 office memo to the Daily News but not any grand jury material from the 2009 investigation, said her attorney Lanny Davis, a Washington-based crisis communications specialist.
Davis said Kane did not leak a 2009 memo on the investigation, on which the newspaper reported: “She never saw it, never read it.”
Feud with Fina
The Philadelphia Inquirer has reported Kane's office released information to retaliate against Fina. The subject of the 2009 investigation, former Philadelphia NAACP president J. Whyatt Mondesire, was never charged with a crime. Mondesire could not be reached for comment.
“I'm not sure if Fina and Costanzo providing the information about the leak to Judge Carpenter would matter legally. ... However, I do think it helps Kane make her case that she is being targeted politically,” said J. Wesley Leckrone, a political science professor at Widener University in Chester.
Fina said he and Costanzo had no choice.
“I'm sworn to that grand jury to this very day,” said Fina. “I have to report that.”
A career prosecutor, Fina said there have been several occasions over the years when he reported suspected leaks to grand jury judges.
Said Costanzo, “The letter to Judge Carpenter summarizing a contact with a news reporter was required by my duties.”
Like Fina, Philadelphia District Attorney Seth Williams, a Democrat, has feuded publicly with Kane. Williams took a case she would not prosecute and has charged six Philadelphia Democrats — current and former lawmakers and an ex-Traffic Court judge — with bribery.
In that legislative sting case, Kane blamed Fina for giving an informant the “deal of the century” by dismissing charges against him. She later acknowledged she had signed the October 2013 agreement to dismiss 2,088 charges against the informant, who videotaped cash exchanges with the lawmakers.
The memo that Kane agreed to release to the newspaper was written by a senior agent to summarize an interview with another agent, Davis said. It said that Mondesire had not been interviewed or called before the grand jury, Davis said. He said Kane did not realize a transcript of the agent's interview was attached.
“She can't recall whether she saw the transcript,” Davis said Monday.
George Parry, a Philadelphia lawyer and former prosecutor, called that “Clintonian hair-splitting that I find very unpersuasive.”
Davis represented former President Bill Clinton as a White House scandals lawyer, and has spoken on behalf of Hillary Clinton to publicly defend her use of private email when secretary of state.
“Kane's adviser Lanny Davis is an expert at spinning information like this to help clients look better in the court of public opinion,” said Leckrone.
Asked whether the memo Kane agreed to release was derived from grand jury material, Davis told the Tribune-Review: “It's as much derived from grand jury material as you and I are derived from Adam and Eve.”
In any case, he said, Kane was a “stay-at-home mom in 2009” and was not sworn to protect secrecy for that grand jury.
Some legal experts sharply disagree with that argument, since Kane is a statewide elected constitutional officer sworn to uphold the law.
“This is clearly a very heated battle among prosecutors,” said Sen. John Yudichak, D-Luzerne County, a Kane supporter who would not speak to the legal process.
An axe to grind?
Kane campaigned for the office in 2012 with a promise to investigate why her predecessor, then-Republican Gov. Tom Corbett, took 33 months to investigate child predator Jerry Sandusky. She suggested he might have slowed the investigation of the former Penn State assistant football coach while running for governor. Her review, once in office, found that wasn't the case.
Fina was one of two prosecutors who helped convict Sandusky of 45 criminal counts of child molestation in 2012.
“You might say they have an axe to grind,” Parry, a former federal and city prosecutor, said of Fina and Costanzo. “But if I was in their position and heard the Daily News had grand jury material, I would do the same.”
James Schwartzman, another Philadelphia lawyer who worked as a federal prosecutor, said if the case were in the federal system, “I believe it would be the responsibility of the prosecutor who sees the leak to report it to the supervising judge.”
That would be “reasonable and appropriate,” said Schwartzman, a former chairman of the state disciplinary board for lawyers.
Jennifer Ellis, a Philadelphia ethics lawyer and consultant, said former prosecutors might not be required to report a suspected leak from five years before. But she said she would do what Fina did. Ellis compared it to lawyer-client confidentiality, “which follows lawyers from firm to firm.”
Sworn to secrecy
Still, former and current prosecutors hold mixed views about whether Kane was covered by grand jury secrecy since she did not hold office in 2009. Davis cited state law on grand juries, which refers to participants being sworn.
“When a public official is sworn into office, the official is swearing to uphold the law,” said former Montgomery County District Attorney Bruce Castor, a Republican.
Northampton County District Attorney John Morganelli, a Democrat, said the grand jury act “speaks of those who are actually sworn to secrecy.” But he agreed that, “It could also be argued that she is obligated by her oath of office to protect all such prior grand jury material.”
Kane's argument “renders the grand jury (secrecy) law meaningless,” Parry said, noting that under that theory, prosecutors could release whatever past grand jury material they choose.
Brad Bumsted is Trib Total Media's state Capitol reporter. Reach him at 717-787-1405 or firstname.lastname@example.org.