- Associated Press - Wednesday, February 4, 2015

HARRISBURG, Pa. (AP) - Pennsylvania’s attorney general argued Wednesday that a special prosecutor who investigated her was appointed without legal authority or the presence of safeguards to prevent abuse.

Attorney General Kathleen Kane’s lawyers said in a court filing that the suburban Philadelphia judge who appointed special prosecutor Thomas Carluccio gave him powers “that were not his to delegate.”

“There is no authority for the judiciary to appoint a special prosecutor to conduct an investigating grand jury into the actions of the Office of Attorney General,” Kane’s lawyers wrote. “Such an appointment would never be lawful without appropriate procedures and safeguards in place to prevent abuse.”

The filing was made about a month before the legality of Carluccio’s appointment will be the subject of argument before the state Supreme Court.

A grand jury looking into the disclosure of investigative material to a news reporter recommended to Carluccio in December that there are reasonable grounds to charge Kane with perjury, false swearing, official oppression and obstruction. She has denied breaking the law and has not been charged with any crime.

Kane’s lawyers said Pennsylvania’s independent counsel law expired in 2003, and argued Montgomery County Judge William Carpenter’s appointment of Carluccio was done without many of the safeguards that had existed under that statute, including a process to determine if the appointment was needed and having a randomly selected three-judge panel appoint and determine what matters the prosecutor could handle.

“Never was it contemplated that a special independent prosecutor would be appointed by a single judge, on his own initiative, as Judge Carpenter did here,” Kane’s lawyers wrote. “Mr. Carluccio was selected by criteria known only to Judge Carpenter, and without reference to any delineated guidelines.”

The previous law provided for control of the independent counsel’s records, they noted, but “none of those standards would apply to Mr. Carluccio in this case.”

Carluccio sent the grand jury’s report to Montgomery County District Attorney Risa Ferman, who has not spoken publicly about what she intends to do with it.

The Philadelphia Inquirer first reported on the investigation in September, saying a grand jury was examining how secret records related to a 2009 investigation by the attorney general’s office of the then-president of the Philadelphia NAACP ended up a June story in the Philadelphia Daily News.

In a Dec. 30 opinion sent to the Supreme Court, Carpenter cited a 2011 high court opinion in a separate case that said it was appropriate to appoint a special prosecutor “when there are colorable allegations or indications that the sanctity of the grand jury process has been breached.”

Carpenter and Carluccio have a Feb. 18 deadline to file briefs of their own in the case.

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