The involvement of U.S. government and court employees makes this a federal case, and raises the stakes and complications exponentially.
Until the email chain is completely investigated in context, tracing thousands of emails to and from every recipient, and examining the relationships of the parties, we cannot get to the bottom of this scandal. That requires the resources and independence of a special federal prosecutor.
The long-running Pennsylvania court porno email scandal seems likely to soon rise to a new level of trouble for those involved: investigation by the federal government and U.S. courts.
Last week Pennsylvania Attorney General Kathleen Kane acknowledged that a single “raunchy, sexist (and) racist” email had “circulated among ‘a district attorney, a first assistant district attorney, a county judge, a senior deputy attorney general, an assistant U.S. attorney and a U.S. Fish and Wildlife employee, a deputy clerk for a federal judge, a lawyer with the Pennsylvania Gaming Control Board and a second Common Pleas judge in Dauphin County.'”
The state’s chief prosecutor earlier said, “The (pornographic email) images themselves aren’t the only story. The problem is the network that’s involved, and the breadth of this network is incredible. This network is judges, U.S. attorneys, attorneys general, law enforcement, district attorneys, and public defenders.”
The involvement of U.S. government and court employees makes this a federal case, and raises the stakes and complications exponentially.
In the event federal bureaucracies and investigators get involved, state officials who so far have labored unsuccessfully to conceal the growing scandal will find the repercussions and adverse publicity even harder to control.
That of course would be a good, and necessary, development for the public.
Some already are calling for the appointment of an independent federal prosecutor to look into the porno email chain, an appointment that increasingly seems necessary to get to the bottom of the complex scandal.
All this could bring legal problems not only for individual federal office holders who sent or received pornographic emails, observers say, but also for all members of the email chain.
That’s because there are not only prohibitions in each federal agency against misusing U.S. government computers to view porn.
There are also strong federal laws on the books prohibiting the distribution of sexually exploitive photos of children.
There are as well federal laws regulating interstate communications lines through which the emails are sent.
So the growing state scandal seems likely to open a new, much larger can of worms as its tendrils continue to be exposed into the federal bureaucracy and across state lines.
It becomes a federal case. Each federal agency and the courts have a conduct code
Each of the federal agencies and courts mentioned by Kane last week — the U.S. Justice Department, the federal courts, and the Wildlife Service, which is part of the Interior Department — have rules governing employee conduct.
As I wrote several weeks back, the U.S. Justice Department has strict standards of conduct governing its employees — including federal prosecutors and assistant U.S. attorneys mentioned by AG Kane — that would seem not only to prevent the viewing of pornography at work, but also precludes conflicts of interests created by being too cozy with judges.
As for the “deputy clerk for a U.S. judge” mentioned by Kane, the federal judiciary as well has a “Code of Conduct for Judicial Employees” which would seem to preclude sharing pornographic, racist, sexist, or otherwise questionable emails.
Justices McCaffery and Eakin
“A judicial employee should not engage in any activities that would put into question the propriety of the judicial employee’s conduct in carrying out the duties of the office,” the code reads.
And, “A judicial employee should be faithful to professional standards and maintain competence in the judicial employee’s profession.” As well, “A judicial employee should be patient, dignified, respectful, and courteous to all persons with whom the judicial employee deals in an official capacity, including the general public, and should require similar conduct of personnel subject to the judicial employee’s direction and control. A judicial employee should diligently discharge the responsibilities of the office in a prompt, efficient, nondiscriminatory, fair, and professional manner.”
It’s fair to say that federal court employees who share racist, sexist or porno emails with state court officials are not acting in a “nondiscriminatory, fair, and professional” fashion, as the federal court code demands.
By the same token, the U.S. Fish and Wildlife Service, which employs or employed one of the reported members of the email chain, “has all sorts of rules and regulations at the Department of Interior level and the agency level about the use of computers and what is acceptable and what is not,” says the U.S. Fish and Wildlife Services Chief of Public Affairs Gavin Shire. “Whether an employee was a recipient or whether they were a more active participant in the email chain is pertinent.”
Specifically, the U.S. Department of the Interior has rules and guidance on the use of computers, email, and other federal government equipment. The Departmental Manual states: “Employees are strictly prohibited from using Government office equipment, at any time, for activities that are illegal (e.g., gambling), inappropriate, or offensive to co-workers or the public, such as the use of sexually explicit or discriminatory material, or communication that ridicules others on the basis of race, creed, religion, color, gender, disability, age, national origin or sexual orientation.”
At the Department of Interior, matters involving the inappropriate use of agency emails or equipment are handled internally at the agency level.
On background, an Interior Department official tells me, “Individuals cannot necessarily control emails that are sent to them by third parties. To my understanding, the single email in question in this case that has been associated with a (Wildlife) Service employee originated from outside of the agency.”
But how many emails did this unnamed Wildlife employee receive? Thousands of emails have yet to be released by AG Kane’s office.
Even so, the official told me, “We do not have any on-the-record comment for you on this issue at this time.”
Broader federal questions concerning exploiting children and use of communications lines
Employee rules at each of these individual federal agencies and courts are only a small part of what could, and should, be enforced by the federal government, legal observers say.
Even more complicated — and certainly requiring the eye of an experienced and independent prosecutor — are federal laws governing interstate communications such as emails, and child exploitation laws.
“You’re talking about, with all these emails going back and forth, particularly with the child porn, whether they potentially violate federal communications laws,” one experienced federal court lawyer tells me. “All this stuff over the wires brings in the federal laws.”
The issue gets even complex when one considers whether private, or ex parte, communications between federal prosecutors and judges or their staffs violated the civil rights of hundreds or perhaps even thousands of litigants and defendants who have a right to, and expect, impartiality before the courts.
Behind the Green Door
How complicated does all this become?
Take for instance, 18 U.S. Code § 2252, which punishes crimes involving “Certain activities relating to material involving the sexual exploitation of minors.”
This potent federal law prosecutes “Any person who … knowingly receives, or distributes, any visual depiction using any means or facility of interstate or foreign commerce … by any means including by computer … if—
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct.”
One of the more infamous emails released by AG Kane so far, carrying the subject line, “Men in Training,” depicts a half- naked young boy gazing into the open underwear of a topless young girl, among other images.
“The caption shows an awareness they’re kids,” one lawyers tells me. “Where does it fit in the exploitation of kids? If they got that picture, the question is where did they get it, and what was it coupled with? Why did they think it was scintillating enough to send? It’s certainly bundled with sexually explicit pictures depicting the sexual exploitation of others.”
So context is important. You can’t make an informed judgment from individual photos or emails viewed out of context, such as those few emails that were leaked to the Philadelphia newspapers by state court officials in recent weeks.
The lawyer goes on, “Who made this photo with these kids, and why? The question for an experienced prosecutor becomes one of the intent and psychology of the people who made this photo, as well as the ability to trace the thousands of emails sent and received along the chain. All that takes the resources of a dedicated federal prosecutor.”
Under question is not only a judgment about the face value of the photos. It’s what is, and who is behind the photos.
“That picture of the boy staring down girls pants, or peeing on the lawn, is obviously exploitation of some kind,” a lawyer tells me. “Someone is exploiting these kids. It may or may not be pornography, strictly speaking. But it’s certainly exploitative behavior by someone with power over these kids. Some adult had to set those kids up, and they’re selling or trafficking that stuff on the Internet. Why?”
The teasing, scintillating nature of these photos hints at something darker, hidden from plain sight, like the mysterious and suggestive title of the porno movie Behind the Green Door.
The legal complexity of these questions, coupled with the fact that there are thousands of emails involved, cries out for a special prosecutor. An experienced, trustworthy, and independent federal prosecutor can only address these questions, state lawyers say.
“Who for example is the assistant U.S. attorney mentioned in the email chain?” a lawyer asks me. “A federal prosecutor’s involvement may not only be a violation of Department of Justice protocols, but might also represent possible federal law violations. And then there are other ethical questions, such as, why wasn’t this long-running behavior reported, stopped or investigated?”
“At the very least, that photo alone of the boy staring into the girls underpants raises lots of red flags, and demands thorough investigation. That one photo alone is certainly enough to indicate probable cause to start an investigation.”
Special federal prosecutor required
An independent special prosecutor is all the more required because staff members of Pennsylvania federal prosecutors — or U.S. attorneys themselves — are reportedly involved in the email chain.
“The respective judiciary committees of the House and Senate, and the U.S. Attorney General must get involved because of the pervasive nature of corruption in Pennsylvania’s district courts and Philadelphia’s Third Circuit Court of Appeals overseeing them,” I’m told.
One former U.S. Attorney, Philadelphia lawyer Peter Vaira, has already called for the appointment of a special prosecutor.
Such an independent special prosecutor would be assigned his or her own special grand jury, under the supervision of a federal judge.
Pennsylvanians can only hope that that federal judge’s staff wasn’t involved in the porno email chain.
In context with the Sandusky case
How important is context in all this?
For one example, the email chain titled “Men in Training” already has troubling, and darker, overtones that certainly shed light, when viewed in context, on Pennsylvania law enforcement, or lack thereof.
As fate would have it, the “Men in Training” email was mailed to recipients on March 3, 2009 — the same day Centre County DA Michael Madeira referred the Jerry Sandusky case to Pennsylvania Attorney General Tom Corbett’s office, according to AG Kane’s Moulton Report on the investigation of the Sandusky case.
“Mr. Sandusky is well known to me and is the adoptive father of my wife’s brother,” DA Madeira wrote to AG Corbett’s executive deputy attorney general on March 3, 2009. “My wife, who was adopted by another family, remains close to her brother and to his adoptive family. Given the close family relationship, an apparent and actual conflict of interest exists for me and my office. Accordingly, I respectfully request that the Office of Attorney General assume responsibility for the prosecution of this case, effective immediately.”
But AG Tom Corbett’s office wouldn’t be seriously assuming responsibility for the Sandusky case “effective immediately.”
That same day, March 3, 2009, the “Men in Training” email recipients are listed to include chief Sandusky prosecutor Frank Fina, Sandusky case chief investigator Randy Feathers, and future Pennsylvania State Police Commissioner Frank Noonan (who himself was also a retired FBI agent), among many others.
At the time, this is what these men were doing in AG Tom Corbett’s office when they should have been going after former Penn State coach Jerry Sandusky.
The same day DA Madeira wanted them to look into Jerry Sandusky’s behavior, Fina, Feathers, Noonan and the others were receiving email images from cohorts depicting a young boy staring down the underpants of a topless young girl, among other photos.
And of course, big brother aka NSA/Homeland Security and other members of the military-intellegence complex should have known about all this from the start. No wonder the efforts to take out AG Kane have been fast tracked, she has opened a real Pandora’s Box of the good old boy’s networks. I suggest any Federal Independent Prosecutor subpoena the NSA for the email chains and any 3 step connections to the email chains – make the whole affair open and available to the public and let those involved defend themselves in the court of public opinion. Boys will be boys, sure – but grown men need to control their behavior and be professionals while at work. And when will people ever realize that an email without encryption is like sending a post card through the mail?
I hope any and all defendants who were before any of the named judges, involved with the lawyers or had any contact in any way with anyone associated with this ring file lawsuits to challenge everything. I have the feeling burying the court system under the weight of its on hubris is going to be the only way this goes anywhere. In a decent world even the whiff of child porn would be enough to force someone to retire or ‘resign to spend more time with family’. But these jerks not only thumb their noses at the very idea of decency, they have the nerve to attack and attempt to destroy the AG who called them out.
I hope every one of them does actual jail time in the State Pen, no club Feb for these guys.
My book “Motherless America: Confronting Welfare’s Fatherhood Custody Program” details a corrupt PA case. It proves $100’s of millions of federal dollars fund a counseling/litigation scam run out of child support and court administration. All PA’s agencies and courts have permitted and covered up a proven unethical mental health for-profit court appointee, who REFUSED cross-examination of himself and his staff, and submitted a report for father only. The Supreme Court blames mother page 112 of Motherless America. How could sexually addicted, misogynists give a fair trial? Book is available on amazon. Website – http://www.MACCAbuse.org