Court revives suit claiming former Pa. attorney general Kane targeted rival prosecutors

Ten months after former Pennsylvania Attorney General Kathleen Kane was sentenced for perjury, a federal appeals court has renewed a defamation suit her longtime rivals filed against her.

Former state prosecutors Marc Costanzo and Frank Fina were among those who sued Kane in 2015, claiming she defamed and blackmailed them.

She threatened to release lewd and offensive emails exchanged on state computers to humiliate them if they would not stop publicly criticizing her, according to the suit. Kane did disclose the “porngate” emails, generating considerable fallout, including the resignation of two state Supreme Court justices. 

Costanzo and Fina also stepped down from the state attorney general’s office.

Last summer, a federal judge killed the lawsuit, saying Kane’s actions and remarks did not cause concrete harm to those who sued. But now, the U.S. Court of Appeals for the 3rd Circuit has revived it.

Mark Tanner, who argued the case before the appeals court on behalf of Fina and other plaintiffs, said it’s about time.

“These men want an opportunity to give their side of their story,” Tanner said. “They want an opportunity to use evidence and facts and actual proof to show that they did not do the things they were accused of doing. And, if anything, all they did was their duty to expose misconduct and unlawful conduct on the behalf of the sitting attorney general.”

Edward Ellis, Kane’s lawyer, did not return requests for comment.

As the process of digging into the evidence unfolds, Tanner said he anticipates some surprises.

“What is going to come out is that, at best, some of these guys were at the very periphery of the whole scandal,” he said. “But there are others who are probably rather concerned that their names could come out who are much more involved.”

Tanner did not elaborate about what other individuals could potentially become ensnared in the “porngate” saga.

Kane, meanwhile, is now serving a sentence of up to nearly two years for lying under oath. 

In the ruling giving new life to the civil suit, the justices noted that retaliation suits against public officials can only move forward when the officeholder used “threat, coercion, or intimidation” to muzzle someone’s free speech.

Long-simmering discord

Constanzo, Fina and the other plaintiffs — former state prosecutor Richard Sheetz, investigator Randy Feathers and former state police commissioner Frank Noonan — offer three examples of such Kane-directed threats.

According to Fina, Kane’s deputy intimidated him with the “porngate” emails, saying continued public criticism would cause her to release them. In another alleged instance, a Kane aide told a Fina colleague that “a lot of [Fina’s] people are going to be hurt if Fina does not back off.” Finally, a former Kane investigator, Michael Miletto, is accused of physically threatening Constanzo and Fina before the two were set to testify against Kane.

On the 2012 campaign trial, Kane pledged to reopen the attorney general office’s probe of Jerry Sandusky child sex abuse case. During the course of that, a special investigator stumbled upon droves of emails exchanged among state employees and top court officials. Some of the tens of thousands of messages were racially offensive and pornographic.

Tanner maintains Kane selectively disclosed messages in an effort to besmirch her enemies. 

“While she is hurling lightning bolts at my clients because they happen to get some of these emails in their inbox, at the same time, she’s been employing and promoting people who were receiving and engaging in the same conduct,” Tanner said. “They were sent to a wide net of recipients. At times, 20, 30, 40 and more people on these. Not one of my clients originated any content on any of these email strings.”

The eventual release of the material followed what the plaintiffs describe of several other high-profile swipes Kane made against Fina and others.

The ill will seems to have started during a public bribery investigation that implicated a Kane campaign worker. Despite an apparent conflict of interest, Kane decided she would not step away from it and decided to shut it down, calling the case racially motivated. The Philadelphia district attorney’s office ended up taking the corruption case, resulting in five guilty pleas.

Although the aim of the suit is to clear the names of those who say they’ve been unfairly tarnished by the “porngate” scandal, Tanner said the long-running episode has been instructive to his clients.

“They’re not all completely without fault,” Tanner said. “Certainty, there were some sensitive and some emails that should never have been written or sent. And I think they acknowledge that and have learned their lesson by that.

“But these guys lost jobs. Their names were all over the place. Their pictures were plastered on CNN. They were accused of porn peddling and engaging in images, including images of children, which wasn’t true.”

Correction: A previous version of this story misstated that Kane is currently in jail. She was given a 10 to 23 month jail sentence in October 2016, but she is now free on bail pending her appeal. If her conviction survives all appeals, she will then start her minimum 10-month sentence in a Montgomery County jail.