Posts Tagged trial

Tampering with Transparency

Transparency has become a buzzword, one of those principles that politicians of all stripes pledge fealty to, but often in practice fall short.  For those who value the ability of We the People to know what is happening in our government, the past couple of weeks in Penn’s Woods have been bad ones.

For starters, the grand jury investigating whether Attorney General Kathleen Kane leaked confidential court information recommended the state’s Shield Law, upholding the right of journalists to keep confidential sources confidential, be changed to remove that protection when it relates to grand juries.

In a misguided effort to preserve the secrecy of such proceedings, the jurors placed blame for the leaks on the reporters writing the stories rather than on the individuals – including possibly the Attorney General – who actually leaked the information. Weakening a critical protection of journalistic freedoms is akin to blaming the escaped horse for the farmer having left the barn door open.

Shield laws are important because officials – elected, appointed and hired – who see to hide information from the public generally are willing to use the power of their position to harass, punish or otherwise frustrate the news media to prevent transparency from occurring.  Simply put, the ability to protect the confidentiality of sources makes it possible for journalists to do their job precisely at the time it is most important for them to do so.

The other hit to transparency came just days after Governor Tom Wolf took office when he attempted to fire the director of the state’s open records office.  Since its inception over six years ago, the Office of Open Records has become a vital tool for the media, watchdog groups, citizen activists and concerned voters to obtain information from governments at all levels that seek to deny access.

Although the state’s Open Records Law can and should be strengthened, it has brought about a higher level of transparency to government.  It is critically important for the independence of that office to be maintained, free from interference by both the executive and legislative branches of state government. That independence was honored by governors, Democrat and Republican, until now.

Former Governor Ed Rendell appointed Terry Mutchler as the first director of the Office of Open Records. The law states that executive directors shall be appointed for a six year term.  So, when Republican Governor Tom Corbett took office she continued in her job – actually past the six year mark as Corbett did not act immediately to name a replacement when her term expired.  That move came in early January during the waning days of his administration when Mutchler resigned and Corbett named Erik Arneson as the new executive director.  Arneson, a former state senate aide, played a key role in crafting the Open Records law making him eminently qualified for the job.

Within days of his inauguration, Governor Wolf, objecting to the timing of his predecessor’s action, fired Arneson.  Arneson’s dismissal triggered a firestorm of protest from senate Republican leaders who have correctly asserted that the job is not an “at will” position, but rather an appointment to a fixed term.  Arneson, claiming he could not be fired, showed up for work the next day as did the acting director appointed by Wolf.  A court battle now looms.

Setting aside the political stupidity of starting a turf war his first week in office, a lot more than a battle between a Democrat Governor and Republican Senate hangs in the balance.  If Governor Wolf succeeds in turning the Office of Open Records into a political fiefdom it will become impossible for it to fulfill its mission.  Above all, the Office of Open Records must remain free from political pressure.  How willing would an executive director who serves at the will of the governor be to grant open records requests which the administration wants to keep information hidden?

Candidate Tom Wolf ran for office promising a “fresh start.”  But by seeking to politicize the Office of Open Records, Governor Tom Wolf has fully embraced the worst aspects old fashioned politics.  There are many ways for a governor to confront a legislature, but tampering with transparency is a foolish way to begin.

(Lowman S. Henry is Chairman & CEO of the Lincoln Institute and host of the weekly Lincoln Radio Journal.  His e-mail address is

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Kane is Not Able

Politics, the saying goes, is all about timing.

If that is so, State Representative Daryl Metcalfe was a man ahead of his time when last year he introduced a measure calling for the impeachment of state Attorney General Kathleen Kane.  Metcalfe based his call for the attorney general’s removal on her refusal to defend the state’s statute prohibiting same sex marriage.  The specific statute aside, defending existing state laws is a core duty for a state attorney general.  Failing to do so was indeed a dereliction.

Metcalfe’s efforts went nowhere, but a string of recent events have eroded confidence in the attorney general who has at a minimum engaged in bizarre behavior and verbal miscues and, at worse, may herself be a law-breaker for having potentially violated grand jury secrecy provisions.  Even the news media, which hailed her as the second coming of Barack Obama, has fallen out of love.  Many now question her ability to continue in office.

It is true most Pennsylvanians don’t wake up in the morning thinking about their attorney general.   Although it has risen above the other statewide constitutional offices (treasurer and auditor general) in profile, the attorney general is not generally subject to the same media scrutiny as governors and U.S. Senators.

But, since Pennsylvania attorneys general frequently try and sometimes succeed in achieving higher office, their performance is worth noting.  After her solid election victory in 2012 Kane herself was viewed as a rising star.  Like Ernie Preate, Mike Fisher and Tom Corbett before her she was expected to seek higher office. Now there are doubts she will even finish her current term.

For those who are unaware, the Office of Attorney General holds significant power.  The attorney general is not merely an elected paper pusher.  He or she is vested with sweeping investigatory power, including the ability to authorize wiretaps and to prosecute.  We task our attorneys general with everything from fighting illegal drugs to rooting out Medicaid fraud.  We trust them with overseeing our state’s charitable organizations, and count on them to work cooperatively with local police. This is a serious office conducting serious business.

But the evidence now reveals the current occupant is not up to the task.

Several weeks ago Attorney General Kane was injured when her official state car crashed into another vehicle.  Weeks went by before the media, and by extension the public, were made aware of the incident.   Interestingly, the timing was intertwined with an investigation into leaks of grand jury information in which the attorney general was expected to testify.  Such leaks are a crime, so if it is proven Kane was a party to them she likely would be compelled to leave office immediately.

Then there is the issue of competency.  After exploiting the Jerry Sandusky scandal for political advantage her office concluded then Attorney General Tom Corbett acted appropriately in conducting the investigation.  She declined to prosecute after a sting operation found several Philadelphia lawmakers allegedly taking bribes.  The Philadelphia District Attorney is now on the case.  Kane zigged and zagged on the e-mail porn scandal, ultimately claiming some of the e-mails contained borderline child pornography. Her office retracted that statement, but not before it made national news.  Kane and her office received yet another black eye when they cut a plea bargain with former Pennsylvania Turnpike Commission executives indicted under her predecessor.   They received no jail time for their misdeeds.

The question now is: what next?  If Kane is found to have leaked grand jury information she will clearly have to resign.  If she is exonerated there will be no criminal charge, but the state will be left with an attorney general who has failed to uphold state law, refused to follow-up on investigations, left corrupt government officials off easy, and has a penchant for mis-speaking.

The simple solution would be for her to resign and allow incoming governor Tom Wolf to appoint her successor.  That would take partisan politics out of the equation.  Or, she could limp through the next two years leaving it up to voters to decide whether or not to give her a second term.

Or perhaps, someone could place a call to Daryl Metcalfe.

(Lowman S. Henry is Chairman & CEO of the Lincoln Institute and host of the weekly Lincoln Radio Journal.  He is a former executive assistant to the Attorney General of Pennsylvania.   His e-mail address is

Permission to reprint is granted provided author and affiliation are cited.

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