Should Pa. courts be allowed to intervene in the impeachment drive against Philly DA Larry Krasner?

Pennsylvania’s Supreme Court justices on Tuesday questioned whether the courts should be able to intervene and effectively strike down an impeachment that was approved by the state House, or if it is more appropriate for questions over an impeachment’s merits — or even its legality — to be resolved by the state Senate during a trial.

The issue was debated during an hours-long hearing over a lawsuit filed by Philadelphia District Attorney Larry Krasner, who was impeached by the House at the end of last year.

House Republicans who led that effort accused Krasner, a Democrat, of failing to fulfill his prosecutorial responsibilities and enacting reform-oriented policies that went on to fuel the city’s shooting crisis, among other issues. Krasner denied those allegations and repeatedly called his impeachment politically motivated and legally insufficient, saying the articles that were approved by the House failed to demonstrate any “misbehavior in office” on his part. He sued in Commonwealth Court and asked for the impeachment proceedings to be stopped.

Late last year, the court agreed with the heart of his challenge, putting his expected Senate trial — which could result in his removal from office if convicted — on indefinite hold.

But Tuesday, the high court’s justices asked several questions of Krasner’s lawyers about how, when, or whether it was proper for the judiciary to become involved in a legislative matter before it was complete.

“Why should we inject ourselves at this time?” asked Justice P. Kevin Brobson. He later added: “I am shy about whether it makes sense, constitutionally … for us at this stage to stick our noses in a [legislative] process.”

The justices asked similarly pointed questions of Robert Graci, a lawyer for the House Republicans, who said the legislature was the sole entity responsible for determining the grounds for impeachment and removal. He added that the courts should have no role in a process that is inherently political and conducted by a separate branch of government.

Justice Christine Donohue seemed skeptical of that argument, asking: “Why [should legislators] take an oath to uphold the law and the Constitution if you are not bound by the developed concept of what that entails?”

The question of the courts’ role in the impeachment process was just one of several issues in the case before the justices. And the biggest questions — how or when they might rule, and what impact, if any, that ruling might have on Krasner’s impeachment — remained unanswered Tuesday.

Still, the hearing marked the latest development in the unprecedented and unpredictable impeachment drive against the city’s DA. And the answers the justices eventually offer could go on to set precedent in cases well beyond Krasner’s; his lawyers and the justices each gave several hypothetical examples of how the questions they were debating could be interpreted in different cases in the future.

In seeking to stress the historic nature of the case, Krasner’s lawyer, John Summers, also turned to history: “Since the founding of this Commonwealth, ... our research reveals that there has been no impeachment effort like this one.”

The impeachment effort began last fall, when GOP House members accused him of failing to address the city’s gun violence crisis, obstructing a legislative committee, and botching several court cases. The vote was largely along party lines, and came as Republicans were poised to lose their majority in the chamber for the first time in decades.

Krasner denied each of the accusations and sued to halt the proceedings. In December, the Commonwealth Court agreed with him on his most substantive claim, ruling that the articles of impeachment appeared largely based on disagreements about how he was running his office, not evidence that he’d performed his duties with an improper or corrupt motive, the standard for impeachment and removal.

Still, the court rejected two other arguments from Krasner, saying impeachment proceedings could occur across different legislative sessions, and that the legislature could impeach the city’s district attorney.

Then, in an unusual twist, one of the judges who initially backed much of Krasner’s position later wrote that he’d changed his mind on some of the issues and that the legislature, not the courts, should decide them.

All of those issues were debated before the high court Tuesday, with five of the court’s six current justices seated on the bench. Kevin Dougherty, of Philadelphia, recused himself from the case, but did not say why. Judges in Pennsylvania are expected to recuse themselves whenever their “impartiality might reasonably be questioned,” according to the state’s judicial code of conduct.

Several of the justices indicated that the question of when the courts should become involved was a key issue they were weighing.

Brobson, for example, raised the matter several times over the four-hour hearing. Donohue also asked about it several times. The justices acknowledged that there is no mechanism in the state constitution to appeal a conviction in an impeachment case, making this perhaps the only chance they have to decide the constitutionality of the charges.

And at one point, Graci, the House Republicans’ attorney, responded to a question on the issue by speculating aloud about the “havoc” that could ensue if the courts waited until after the Senate had convicted Krasner to weigh a potential appeal — saying it could not only imperil questions of succession, but also undermine the actions taken by the Senate.

“If the district attorney is convicted, he is removed immediately. His office is declared vacant,” Graci said. “Who would be running the office? ... That would be a real insult to the Senate if this court stepped in at that point.”

Krasner and the lawmakers who impeached him were not present inside the opulent courtroom in the Capitol building.

How or if Krasner is ever put on trial remains an unresolved question. The state Senate voted to postpone the proceeding indefinitely after the Commonwealth Court’s ruling. And more potential confusion awaits if the trial is allowed to proceed: The House is expected to appoint the lawmakers who will serve as prosecutors in the case, but the GOP no longer has a controlling majority in that chamber, and it is unclear how eager Democrats may be eager to proceed with the exercise.

Several of the lawmakers expected to act as prosecutors are also running for state attorney general, potentially complicating their involvement

For any lawmaker to be removed from office, a simple majority in the state House must first approve articles of impeachment, and the state Senate must then conduct a trial and approve at least one of the articles by a two-thirds vote. The GOP has a solid Republican majority in the Senate, but not enough to convict Krasner without securing several Democratic votes.