Pennsylvania Attorney General Kathleen Kane recently announced that she would not defend the Commonwealth against a recently filed lawsuit by the ACLU challenging Pennsylvania’s decision to define marriage as between one man and one woman. Forget the fact that she took the position that it was dangerous for prosecutors to pick and choose which laws to enforce while she was running, there is a bigger issue.
The role of the executive branch of government is to enforce the laws passed by a democratically elected legislature. The executive branch, which houses prosecutors like Kathleen Kane and U.S. Attorney General Eric Holder, is the police power of the state. This is a constitutionally vested power that is only given to the executive branch. While there is admittedly a separation of powers argument to be made that the unilateral placement of this power is designed to keep an out of control legislature in check, the concept was not intended to create unlimited power in the executive or to impose the political will the prosecutor. To do so would be to permit a dictatorship of one over the political will of the people.
A prosecutor’s oath of office requires the person to uphold the laws of the land and prosecute and defend those laws – not just the ones with which they agree. What’s more, prosecutors are lawyers. The rules of professional conduct impose upon lawyers a duty of loyalty to their clients. That duty, which can be found in the conflict of interest rules, suggests that it may be a conflict of interest for a lawyer to take a position adverse to his or her own client if that position is to the lawyer’s own benefit. Can there be any other explanation as to why Kathleen Kane took the position she announced on the ACLU lawsuit?
AG Kane has decided that it would be detrimental to her political career and the meteoric rise she has enjoyed to defend Pennsylvania’s validly passed law on marriage. As Attorney General though, her only client is the Commonwealth of Pennsylvania. By refusing to defend the law she is taking a position adverse to her client for her own personal benefit. Simply stated, this is improper for her to do as a lawyer.
I agree with Kathleen Kane on at least one thing. She was right when she suggested it was a dangerous precedent for prosecutors to opt out of doing their job. Nonetheless, prosecutors all over the country are taking just that position. It’s a slippery slope that far too many are willing to risk going down.
What’s next? The refusal of a prosecutor to prosecute a murder case? If this trend is not stopped, the legislative branches of government will be further marginalized and danger is on the horizon.