Philadelphia District Attorney Larry Krasner takes questions from reporters after a press conference in Harrisburg on Friday, Oct. 21, 2022 (Capital-Star photo).
Lawyers for Philadelphia District Attorney Larry Krasner and the lawmakers who would play roles in his Senate impeachment trial grappled before the state Supreme Court on Tuesday with questions about Pennsylvania’s rarely used impeachment process.
Chief among them was whether articles of impeachment die at the end of a legislative session as unpassed legislation does, or whether an effort to remove a public official from office by impeachment can continue after the two-year session when it starts.
“It’s got a fancy name – sine die – that people dispute how you pronounce it,” Krasner’s attorney John Summers said, noting the Latin phrase meaning “without a day” used to describe the unfinished business of a legislature.
“What it really is, is that the Constitution provides that the body, the General Assembly, lasts for two years, and it’s finished its business in two years. There’s no carryover business,” Summers said.
His co-counsel, Corrie Woods, who represents Senate Minority Leader Jay Costa (D-Allegheny), argued that the language outlining the requirements and duties of the General Assembly, including the two-year sessions, applies to everything the House and Senate have authority over.
“When we have an election, and the people who are elected begin, they have new priorities or different priorities,” Woods said. “They have a new opportunity to be the government. And for that exercise of that power, to have legitimacy is predicated on the most recent election.”
Chief Justice Debra Todd said that outside the unusual situation of impeachment, it’s common that popular legislation dies because the session ends before it passes.
“That’s it, no matter how much everyone wanted to see that pass, you start all over again, the next term,” Todd said during the four-hour argument. “So it seems to me that impeachment is really no different than any other legislative business unless someone convinces me today that it is.”
The justices will now deliberate privately before issuing opinions. The Pennsylvania Supreme Court, unlike the U.S. Supreme Court, has no timeline to decide cases.
Krasner, who became a target of law-and-order Republicans for his progressive criminal justice policies, was impeached in the closing days of the 2021-22 legislative session. The articles of impeachment accuse Krasner of misbehavior in office and obstructing a legislative investigation. They allege that his use of prosecutorial discretion, personnel decisions, and policies against mass incarceration contributed to a rise in crime across Philadelphia.
Krasner, Costa, Senate President Pro Tempore Kim Ward (R-Westmoreland), and state Reps. Craig Williams (R-Delaware) and Tim Bonner (R-Mercer), who would serve as impeachment managers, are each appealing aspects of a split Commonwealth Court decision in December. Williams announced his candidacy for Pennsylvania attorney general on Tuesday.
Other questions before the court are whether the articles of impeachment allege actions that constitute misconduct in office, whether the state Constitution gives the General Assembly power to impeach a locally elected official and whether the courts have jurisdiction over impeachment or whether it is a purely political question.
On the last question, the parties reached back to the 1994 impeachment of Supreme Court Justice Rolf Larsen, who was charged with misconduct including preferential treatment for cases involving lawyers with whom he was friends and violating prescription drug laws. Larsen’s conviction was the last impeachment in Pennsylvania.
There, the court found that it had no power to intervene in an impeachment before it happens, just as the court has no authority to intervene in legislation before it is enacted.
Justice Kevin Brobson grilled Krasner’s attorney on why the Supreme Court should get involved given the fact that the Constitution provides for due process in impeachment proceedings through a trial in the Senate.
“You could raise these very arguments with the Senate and the Senate would vote to not convict based on the fact that the charges from the House do not rise to the level of offenses that warrant removal from office, and therefore we wouldn’t have to decide this case at all,” Brobson said.
Summers argued that Krasner should have the ability to challenge the articles of impeachment because they put a cloud over his office regardless of whether the Senate would vote to convict or acquit him. He compared the request to dismiss the articles of impeachment before the court to a civil defendant’s response to a lawsuit that fails to state a claim.
Attorney Robert Graci, who represents Williams and Bonner, argued that the language in the Constitution granting the House the sole power of impeachment means that the courts have no power to delve into questions such as what constitutes “misconduct in office.”
Brobson said it was hard for him to grasp that the Supreme Court doesn’t have authority to interpret the impeachment language in the Constitution because it doesn’t explicitly say only the Senate can determine what misconduct in office includes.
“I’m more interested in the idea of not whether we can address the question but when can we look at whether the body … acted within constitutional lines,” Brobson said.
Graci said that after a conviction in the Senate, Krasner would immediately be removed from office. An appeal of that conviction would “wreak havoc.”
“Who would be running the office? Would Mr. Krasner continue to run the office?” Graci asked. “That would be a real insult to the Senate if this court stepped in at that point and says, ‘Oh, wait a minute.”
“So you don’t mind us stepping in now?” Brobson asked.
“I do mind you stepping in now,” Graci replied. “That’s why I’m arguing that it’s a political question that you shouldn’t be involved in.”
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