Legal experts are speculating what will be the outcome of state Attorney General Josh Shapiro’s investigation into the May 2 confrontation between Sen. Scott Wagner and a liberal super PAC’s campaign tracker at a private luncheon held at a York County country club.
Wagner confiscated the tracker’s camera equipment following a tussle that left the tracker with a bloody finger, and later gave it back minus the camera’s memory card which still has not been returned. The tracker from American Bridge 21st Century recorded the incident first with the camera and later a phone and has since publicly shared the video.
Based on media accounts of the incident, coupled with raw video footage, lawyers interviewed disagree about whether any crimes were committed that day.
Wagner, a Republican, has declared he is running for governor. Some lawyers said political ramifications should not to be considered in determining whether a crime was committed but suspect it will become part the discussion.
Some legal experts believe prosecutors have enough evidence to consider filing robbery or theft charge and possibly assault against Wagner.
“If the attorney general or law enforcement conclude that he forcefully took the camera from the tracker, that would be a third degree felony version of robbery, which entails taking property from another person by force however slight,” Matt McClenahen, a criminal defense lawyer in State College who worked as a York County public defender from 2001 to 2006.
If law enforcement determines no force was used and it was more a matter of taking the tracker’s tangible property with the intention of permanently depriving him of it, that would constitute a theft, he said.
Simple assault is another possibility if law enforcement determine Wagner inflicted bodily injury on the tracker in the confrontation. Or some suggest the investigation could end with both Wagner and the tracker could being charged with harassment.
Others, however, say they would shocked if any charges resulted from this investigation. Longtime Harrisburg attorney Corky Goldstein is among them.
“It might have been done in heat of passion but I don’t think the attorney general is going to take any position in regard to criminal charges,” he said.
“At the end of the day, it was an emotional incident that I believe everybody wishes would be erased,” said prominent criminal defense attorney William Costopoulos of Lemoyne.
A spokeswoman for American Bridge, said it wants its memory card back or it will consider legal action against Wagner. But that issue aside, spokeswoman Lizzy Price said her group’s key takeaway from the incident is that Wagner “reacted in such an aggressive way that was just so different than anybody else has ever reacted to any sort of tracking situation that we ever encountered.”
Attorney General’s office spokesman Joe Grace declined to elaborate on the investigation beyond saying York County District Attorney Tom Kearney has turned the matter over to the attorney general’s office and it is working on it with the Spring Garden Township police. That is where the country club is located where the incident took place.
Kearney’s spokesman said the district attorney last Monday turned the matter over to the attorney general’s office due to a conflict of interest arising from his 30-year-old personal and professional relationship with Wagner.
Several attempts to reach Wagner last week were unsuccessful. However, he did release a video to address the incident. In it, he points out that billionaire political activist George Soros gave American Bridge a $1 million contribution. Then he directs this message to Soros: “I’m not going to back down from you or your bullies.”
Wagner accused the tracker of trespassing in the tracker’s video as well as in an interview with PennLive a couple days after the incident occurred. He said the event was a private event at a country club and said the tracker lied to gain entry. American Bridge’s Price said her group doesn’t see any grounds for a trespassing charge being filed against its employee.
McClenahen said it is possible the tracker will be charged with trespass and that could be a mitigating factor that prosecutors consider in determining whether to file charges against Wagner. “It could be a situation where if neither guy gets charged, maybe it’s a two-wrongs-make-a-right kind of situation,” he said.
An aggravating factor to be considered is the fact that to date, Wagner has not publicly shown any remorse or been apologetic about how he handled the situation. “That’s certainly not something law enforcement likes,” McClenahen said.
Costopoulos, however, doesn’t see grounds for any charge being filed against the senator.
“It certainly was not a theft of property,” since Wagner returned the camera and tripod, he said. As for Wagner’s keeping the memory card, he also sees no crime committed there either saying the event was a private affair and not intended for public view.
The tracker’s finger being injured was “incidental to the senator taking the camera which I believe he had a right to do” since the tracker was a non-invitee, Costopoulos said.
“However, the perception of the event in the court of public opinion is an entirely different matter and I believe both parties wish that it would have been handled differently,” he said.
Cumberland County District Attorney David Freed said it could come down to prosecutorial discretion about whether any charges are filed.
He shared his view on how a prosecutor would approach this investigation. He said the investigator would talk to witnesses and view the video. Then investigator would have to consider that both parties have potential issues.
“If you charge both sides, both people have the opportunity to claim a Fifth Amendment right against self-incrimination,” he said. “You have to think about do you charge one? Can you charge both if there is independent evidence that allows you to prove it without testimony from a person who may also be charged? Or do you charge none?”
The latter was how Freed handled a similar type of situation in 2015 when he was confronted with having to decide whether to charge then-Acting Pennsylvania State Police Commissioner Marcus Brown for removing signs critical of him that a retired state trooper placed in his neighborhood.
Freed concluded that Brown had no criminal intent in removing the signs and township ordinance prohibited the signs from being placed where they were. “Both parties should have known better,” Freed said at the time.
McClenahen said if the attorney general reaches a similar conclusion in the Wagner-tracker incident and shares it publicly, “I think that would be an acceptable explanation.” But if no charges are filed and no explanation is given, he said, “I think that would undermine people’s confidence in the criminal justice system.”
Muhlenberg College political scientist Chris Borick said from American Bridge’s perspective, he’s sure they are happy allowing this situation to gain as much traction as it can since a tracker’s goal is to embarrass the candidate they are surveilling.
“If this thing ended up blowing up into a legal case that is prolonged and in the news for a while, the group gets more of what it wants,” he said.
For Wagner, “his best move is to get past it as quick as he can. He can say he doesn’t like that kind of activity, doesn’t like the process, maybe admit he could have handled it better and move on.”
Then again, Wagner may view his actions as a way to show his political base that he wants to fight everything and that this fits with his approach to politics. Borick said, “He really seems to embrace conflict and therefore, this is another chance to fight another battle.”