Pennsylvania's highest court on Tuesday weighed whether the Legislature can proceed with an impeachment trial against Philadelphia's elected progressive prosecutor and whether the court or lawmakers should determine what qualifies as misbehavior in office.
What the justices decide after oral arguments in the Supreme Court chambers in Harrisburg will determine the future of efforts to remove District Attorney Larry Krasner, a Democrat, on claims he should have prosecuted some minor crimes, his bail policies and how he has managed his office.
Krasner was impeached by the state House in November 2022, a year after he was overwhelmingly reelected to a second term, sending the matter to the state Senate for trial.
Justice Kevin Brobson, one of the two Republicans on the bench Tuesday, questioned why the court should get involved at this point and suggested the Senate may not get the two-thirds majority necessary to convict and remove Krasner from office.
"Just as I would not want the General Assembly to stick its nose into a court proceeding, I am shy about whether it makes sense, constitutionally, jurisprudentially, for us at this stage to stick our noses" into the impeachment process, he said.
Justice Christine Donohue, among the four Democratic justices at the hearing, said she was not comfortable delving "into the weeds" of what the impeachable offenses were, but indicated it should be up to the Supreme Court to define misbehavior in office, the grounds for removal.
"It would go through the Senate once we define what misbehavior in office means, whatever that is, and then it would never come back again because then there would be a definition of what misbehavior in office is," she said.
Another Democrat, Justice David Wecht, seemed to chafe at an argument by lawyers for the two Republican House members managing the impeachment trial that lawmakers should determine what constitutes misbehavior.
"It’s not just akin to indicting a ham sandwich," Wecht said. He went on to say, "They could have totally different ham sandwiches in mind."
"I mean, it’s whatever the House wakes up to today and what they have for breakfast and then they bring impeachment. And then tomorrow the Senate wakes up and they think of the polar opposite as what any misbehavior means," Wecht said.
Krasner has dismissed the House Republicans’ claims as targeting his policies, and a lower court issued a split ruling in the matter.
A panel of lower-court judges rejected two of Krasner’s challenges — that the opportunity for a trial died along with the end last year’s session and that as a local official he could not be impeached by the General Assembly. But it agreed with him that the impeachment articles do not meet the state constitution’s definition of misbehavior in office.
Krasner’s appeal seeks reconsideration of the Commonwealth Court’s decision.
The Republican representatives who spearheaded the impeachment and the GOP-controlled Senate leadership also appealed, arguing that impeachment proceedings exist outside of the rules of lawmaking and could continue into a new legislative session. Krasner, as a district attorney, gets state funding and that distinguishes him from purely local officials, they argued.