Former Pennsylvania attorney general Kathleen Kane is likely headed to prison. She was found guilty recently of multiple counts of perjury and criminal conspiracy for leaking grand jury information to a reporter. But Kathleen Kane is also a whistleblower. And like most whistleblower cases, there is more than meets the eye in this one, more than what the press would have you believe are all the facts.
First a few words about whistleblowers and whistleblowing. Almost no whistleblower thinks he or she is a whistleblower, despite the fact that there is a legal definition of whistleblowing: bringing to light any evidence of waste, fraud, abuse, illegality, or threats to the public health or public safety. Still, very few whistleblowers set out to do that. Most believe they were simply exposing wrongdoing like anybody would. Furthermore, when whistleblowers are prosecuted, it is usually not for the actual act of whistleblowing. As soon as a person blows the whistle on wrongdoing, investigators will begin looking into the whistleblower’s past. And with broadly-written laws prohibiting things like “conspiracy,” “wire fraud,” “mail fraud,” “perjury,” and “making a false statement,” the bottom line is that if the authorities want to get you, they’re going to get you.
In my own case, I confirmed the name of a former CIA colleague to a reporter who never made it public. That was a violation of the Intelligence Identities Protection Act (IIPA.) I shouldn’t have done it. I regret doing it. It was a momentary lapse in judgment. But the feds charged me with five felonies. In addition to the IIPA, I was charged with three counts of espionage and one count of making a false statement. Of course, I hadn’t committed espionage, and I was never sure what the false statement was supposed to have been. But I had blown the whistle on the CIA’s torture program in a nationally-televised interview on ABC News. Four of the five charges against me eventually were dropped, but only after I agreed to take a plea. The CIA got its pound of flesh.
Kathleen Kane found herself in the same position. But, confident that she had done nothing wrong, she went to trial. The problem was that juries in the United States would convict a ham sandwich if the cops and prosecutors asked them to. It happens every day in this country.
Kane was the first woman ever elected attorney general in Pennsylvania, a state famous for its political scandals. She had campaigned on a promise to investigate former governor Tom Corbett’s handling of a state investigation into pedophilia allegations against former Penn State assistant coach Jerry Sandusky. There was no finding of wrongdoing on Corbett’s part, but Kane developed a reputation as a partisan. She is a Democrat and Corbett a Republican.
After the Corbett kerfuffle, Kane announced that her office would not pursue an investigation into “pay-to-play” allegations among Pennsylvania Turnpike officials, nor would she pursue allegations of corruption among Philadelphia Democrats. Both cases had been pursued by Gov. Corbett’s chief deputy, Republican Frank Fina. (As it turned out, once an independent investigation was completed, several people in the Turnpike and Philadelphia cases took pleas. None went to prison.)
So what’s the big deal? Isn’t what Kane did called “prosecutorial discretion?”
The big deal is that in the course of her earlier Sandusky investigation, she found that some of the most important officials in the state had used their government computers to trade pornography and pictures, cartoons, and jokes demeaning to African-Americans, gays, Muslims, and the poor. And that’s putting things lightly.
As David Gambacorta wrote in Esquire, “Loads of pornography littered the exchanges between government officials like so much cow shit in an open field. Office secretary porn. Sarah Palin-Photoshopped porn. Hardcore, objects-stuck-in-a-woman’s-every-orifice porn. The more [Kane] clicked, the worse it got. Fat jokes. Gay jokes. Racist jokes. Domestic-violence jokes. The bulk of which were sent on state computers, on state time, from one state employee to another.” Kane was understandably appalled.
The officials trading in porn and inappropriate jokes included a cabinet member and two Supreme Court justices, all of whom resigned. Scores more were censured or fired. And at the same time, Kathleen Kane made some very powerful enemies.
Meanwhile, Fina, Corbett’s investigator, remained very vocal, criticizing Kane in the press and calling on her to explain how her sister, a prosecutor in Kane’s office who received (but did not send) some of the pornographic emails, was not also under investigation.
And there was the rub. An apparently angry Kane, in an effort to discredit Fina, leaked secret grand jury information to the Philadelphia Inquirer related to an earlier investigation Fina had conducted against a Philadelphia NAACP official.
Complicated, yes. Ugly, yes. Kane was wrong to leak the grand jury information. But none of this would have happened if she had played by the old-boy rules and just let a lot of very important people have their email fun. But she went after some of the most important politicians in the state. She rocked the boat, she took on the big boys, and she’ll pay for her freedom, whistleblower or not.
Kane faces more than 15 years in prison. Her sentencing is scheduled for October 24.