Philadelphia DA Larry Krasner speaks at City Hall in April 2021 Credit: Emma Lee / WHYY

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Two months after the Pa. House began an impeachment investigation into Philadelphia District Attorney Larry Krasner, the prosecutor’s office responded in court, arguing the move would “violate the constitutional rights” of the voters who elected him.

But a majority of state reps believe the investigation and possible impeachment is well in their purview, and not just Republicans.

A Sept. 13 floor vote to hold Krasner in contempt for refusing to comply with a subpoena requesting documents from a case involving a former Philly police officer on trial for shooting a civilian passed overwhelmingly, and dozens of Democrats crossed party lines to give the OK — including plenty of lawmakers from Philly.

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Harrisburg Republicans began actively targeting Philadelphia’s progressive district attorney in mid-June, when three GOP state representatives circulated a memo calling out DA Larry Krasner by name, blaming his policies for the city’s continuing gun violence crisis, and vowing to oust him from his position. None of the reps are from anywhere near Philly.

The situation escalated at the end of June when the Pa. House voted to establish a five-person panel. Ostensibly set up to investigate gun violence in Philadelphia, the panel has the power to recommend impeachment, with Krasner as its clear focus.

Krasner’s office called the move a “political stunt,” and went further when issued the subpoena, calling the probe “illegal.”

Impeachment is the only way to force an official out of office who hasn’t been convicted of a crime, as recall elections aren’t permitted in the Commonwealth. History shows it’s unlikely the Krasner impeachment effort will be successful.

Here’s where the legal battle stands, and what might happen next.

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What’s needed to start an impeachment process? Can anyone initiate it?

Pennsylvania law says the House of Representatives has “sole power of impeachment” in the state. To start the process, a simple majority needs to approve a bill establishing an investigatory committee. That’s what happened in late June.

Does the state legislature have jurisdiction to oust a city district attorney? State law notes that impeachment power applies to the governor “and all other civil officers.” That is commonly interpreted as including officials elected in any municipality in the state, but Krasner’s office argues it does not.

Pa. code defines impeachable offenses as “any misbehavior in office,” which is vague enough to cover anything from criminal charges to discontent with how an official approaches their job. In Krasner’s case, those who voted to begin the process believe that he simply hasn’t done the job of a district attorney.

Philadelphia District Attorney Larry Krasner celebrates his reelection in May 2021 with supporters at his victory party Credit: Kimberly Paynter / WHYY

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Once initiated, how does impeachment work? What’s needed for conviction?

Once a bill establishes an investigatory committee — in this case, its title is the Select Committee on Restoring Law and Order — the house speaker appoints a working group. The subpoena-powered panel must include three members of the majority caucus and two members of the minority, meaning three Republicans and two Democrats will investigate Krasner.

If the committee decides its findings are worthy of the effort, its members draft articles of impeachment. Those then go to the floor for a full House vote. If passed, then the Senate holds a trial. A two-thirds majority is needed to impeach.

When does the committee’s work begin and what does that mean for Philadelphians?

Representatives to sit on the panel investigating crime in Philly were selected in July, and include:

  • Rep. John Lawrence (R, Chester County) — chair
  • Rep. Wendi Thomas (R, Bucks County)
  • Rep. Torren Ecker (R, Adams County)
  • Rep. Amen Brown (D, Philadelphia)
  • Rep. Danilo Burgos (D, Philadelphia)

Collecting testimony is one of the early goals of the committee, as House Republicans have already set up an online form seeking submissions.

“Are you a victim of crime in Philadelphia?,” it asks. “Do you feel safe in the city? Have District Attorney Larry Krasner’s policies failed to keep you and your loved ones safe?”

With this approach, the committee is likely to receive comments that support its premise, political consultant Mustafa Rashed, who is president and CEO Bellevue Strategies told Billy Penn.

“If you’re saying, ‘Hey, we’re setting up a commission to impeach someone, and we’re going to do fact-finding,”‘ Rashed observed, “it almost pre-guarantees the outcome that you’re going to keep looking for until you find what you’re looking for.”

In August, a subpoena was issued seeking the “complete case file” of former PPD officer Ryan Pownall, accused of shooting and killing a man in 2017 and charged with third-degree murder. These are the grand jury documents that Krasner says by law he can’t share, and called the request “wholly illegitimate.”

The Pownall case is notable for a few reasons. Pownall is the first PPD officer to face criminal charges for an on-duty shooting in decades, and Krasner’s office argued that the killing showed the need for a rewrite of Pennsylvania’s “justified use of force” policy — the state Supreme Court disagreed.

Pownall’s trial is set to begin this fall.

Philly FOP President John McNesby speaks in 2019 in support of ex-police officer Ryan Pownall, charged with murder in a 2017 shooting of David Jones. Credit: EMMA LEE / WHYY

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What happens after someone is impeached?

An impeached official cannot hold appointed or elected office in Pennsylvania, so it effectively ends their career in public office.

How an impeached official is replaced differs based on their position, and the appropriate state or municipal law.

What about a recall election?

Philly’s Home Rule Charter, established in 1951, originally included rules for a recall. It said that if residents get enough signatures of registered voters — 25% of the number of voters in the last mayoral election — then a special election could move forward.

Those rules differ from the recall procedure for a city like San Francisco, which requires petitioners to get 10 percent of voters to sign for the recall of a citywide elected official. But the comparison is trivial, because Pennsylvania doesn’t allow recall elections. Why?

In the ’70s, Philly residents organized an effort to recall Mayor Frank Rizzo. They collected 210,000 signatures, over 60,000 more than was necessary, but city commissioners invalidated over 120,000 of them due to imprecise signatures and other “irregularities.”

Anti-Rizzo residents sued, and a Court of Common Pleas judge agreed the petition was valid. But the state Supreme Court reversed that ruling, agreeing with the commissioners’ judgment and stating that the recall process “as provided for in the Philadelphia Home Rule Charter, is violative of the Pennsylvania Constitution.”

Relying on the same portion of the law that addressed “misbehavior in office,” the court ruled that there needs to be “sufficient cause established by due process” to remove officials. Philly’s recall process was “premised on something less” than that standard in the eyes of the court — and it was deemed unconstitutional.
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Is impeachment common in the Commonwealth?

Impeachment is quite rare in the Keystone State. Only two officials have ever been impeached in the Commonwealth’s history.

State Supreme Court Justice Rolf Larsen was impeached in 1994. Before that, you have to go back to the 1811 removal of Thomas Cooper, a district judge.

In Larsen’s case, he’d asked his doctor to prescribe his anti-anxiety and depression medications for other court employees to hide his mental health issues. In an elaborate own goal, this was discovered in a grand jury investigation that stemmed from Larsen sparring with other justices over allegations of, you guessed it, their misbehavior.

Larsen was charged for the prescription misdirection and sentenced to one year of probation. As he appealed the decision, he was impeached and convicted by the state Senate in October 1994 — thought not for the prescription drug issue, but for improper ex parte contact in two cases before the court.

As for Cooper, an outspoken antifederalist imprisoned under the Sedition Act during President John Adams’s administration, his downfall was tied to a shift to the federalist side of the aisle once he became a judge.

Also, in a clairvoyant moment, Cooper wrote in 1835 that the country was so polarized that a “line of division will, before a dozen years are over, be drawn at the Potomac.”
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So is Krasner likely to be impeached? What would happen if he was?

What’s under scrutiny is Krasner’s prosecutorial discretion, the liberty prosecutors have to increase, decrease, or eliminate charges for certain acts. There’s reason to believe the House committee will declare his views out of line with his job description — that’s been a primary anti-Krasner argument since he became district attorney.

The Philly DA’s bail policy and its policy to decline certain charges will likely be referenced in the committee’s report.

Findings by Philadelphia organizations and committees suggest the gun violence crisis is not directly correlated with Krasner’s tenure as district attorney.

The 100 Shooting Review report released this year by Philadelphia City Council noted that while arrests for illegal gun possession and recovering guns from crime scenes have risen, “shooting arrest rates remain low, conviction rates in illegal gun possession cases have been declining since 2015, and conviction rates in shooting cases declined between 2015 and 2019 and increased modestly in 2020 and 2021.” The DAO cannot charge people who are not yet arrested, and Krasner was first sworn in 2018.

On the political side, it’s clear nearly all of the state Republicans and a considerable number of state Democrats simply aren’t fans of Krasner’s policies and methods.

Assuming full GOP support, and Sen. John Yudichak’s vote — he’s the Senate’s sole Independent, repping parts of both Carbon and Luzerne County — it would take five Democratic state senators crossing the aisle for Krasner to be impeached.

If Krasner was removed, like any district attorney vacancy, “the judges of the court of common pleas shall supply [i.e. substitute] such vacancy, by the appointment of a competent person to fill the office until the next general election,” according to state law.

That process has taken place in recent memory, as former DA Seth William’s removal under indictment called for a replacement. Philadelphia Court of Common Pleas judges have a tradition of carrying out this election by picking names out of an old top hat, for unconfirmed reasons.

Philadelphia DA Larry Krasner before a news conference in November 2019 Credit: Matt Rourke / AP Photo

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What is Krasner arguing in court?

In early September, the District Attorney’s Office officially requested the Select Committee on Restoring Law and Order be dissolved.

Krasner filed a petition in Commonwealth Court, asking the judge to nullify the subpoena from the state legislators and end the investigation. He argued that:

  • The request for information includes documents covered by grand jury secrecy laws
  • The investigation doesn’t forward a legislative purpose (i.e. wouldn’t actually lead to the development of legislation), so a House panel is not the appropriate vehicle for it, anyway
  • Based on state Supreme Court precedent, Krasner isn’t a “civil officer” and not liable for impeachment

Those points stand along with other factors Krasner hopes a judge will deem disqualifying, like the blatantly political nature of the probe. If an investigation led to Krasner’s impeachment, it “would violate the Constitutional rights of the Philadelphia citizens who elected him,” per the petition.

Is Krasner a ‘civil officer’ or not?

Krasner’s filing argues he’s unimpeachable by members of the General Assembly because of the courts’ definition of “civil officer.”

The petition cites a Pa. Supreme Court opinion in Burger v. School Board of McGuffey School District, penned by former Chief Justice Saylor, stating “state-level officials were almost exclusively in view” when the rules on impeachment were written.

Further, that section of the law states that the penalty for impeachment is limited to “removal from office and disqualification to hold any office of trust or profit under this Commonwealth” — “under this Commonwealth” being the key phrase.

Referencing sections of the state constitution that describe local officials and officials in Philadelphia, and a state Supreme Court decision that stated local officials are not in an office “under the Commonwealth,” Krasner argued the only elected officials subject to this kind of removal are state-level officials.

One section of the petition reads: “Thus, the consequences of a ‘civil officer[‘s]’ impeachment is his removal and disqualification from holding state-wide office, demonstrating that only state-wide office holders are subject to impeachment.”

Does this directly contradict the 1811 removal of a district judge described above? Yes, but it’s based on 20th century changes to the constitution and court decisions.
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Pa. House votes to hold Krasner in contempt

The House, for its part, definitely doesn’t agree with the argument laid out in Krasner’s petition, as evidenced by a 162 to 38 vote approving a resolution that holds the city’s top prosecutor in contempt of the House. Legal enforcement of the resolution would require another vote.

Rep. Lawrence, the Chester County Republican and committee chair, was the primary sponsor of the resolution, decrying the fact that Krasner treated the subpoena as unenforceable.

The resolution was almost unanimously approved by House Republicans. The only “no” from the caucus came from Rep. Mike Puskaric of Allegheny County, who is not running for reelection this November.

Meanwhile, Democrats were split. Another notable yes came from Austin Davis, the Allegheny County rep who’s the Democratic candidate for lieutenant governor.

In a sign of Krasner’s longtime lukewarm support among fellow Philly Democrats, ten Democratic reps from the city also voted to hold him in contempt:

  • Kevin Boyle
  • Amen Brown
  • Danilo Burgos
  • Angel Cruz
  • Nancy Guenst
  • Joseph Hohenstein
  • Mary Isaacson
  • Ed Neilson
  • Darisha Parker
  • Jared Solomon

Arguments from local politicians generally revolved around their distaste with Krasner flouting what they believe to be their institutional authority. None tied Krasner’s policies or performance to their vote.

Jordan Levy is a general assignment reporter at Billy Penn, always aiming to help Philadelphians share their stories. Formerly, he has worked at Document Journal, n+1 Magazine, and The New Republic. He...