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Senator Stevens and the Senate Ethics Committee

Paul Blumenthal of the Sunlight Foundation poses the following questions: “The Alaska Daily News covers another aspect of the trial: what happens if Sen. Stevens is found guilty and then wins reelection? I have another question, what does the Senate Ethics Committee do if Sen. Stevens is acquitted?” 

Lets begin with the easiest question:  if Stevens is not re-elected, it is virtually certain that the Senate Ethics Committee will take no action, regardless of what happens with his trial.  Both the Senate and the House have long taken the position that they lose jurisdiction over a member once he leaves office.  There would be little time left for the Senate Ethics Committee to take any action against Stevens, even if it were inclined to do so.   

A more difficult question arises if Stevens is acquitted and re-elected.  In that case, the Senate Ethics Committee would be under pressure to take action, but Stevens’s lawyers and supporters would argue that the Committee should respect the verdict, not just of the jury but of the voters.  There is a strong tradition, in both the House and Senate, of declining to take disciplinary action against members based on conduct that was known to the voters at the time of their election.  Sometimes this principle has even been described as jurisdictional—for example, in the Fourth Congress a Senate Select Committee found that the Senate had no jurisdiction over accusations of fraud and perjury “alleged to have been committed before [the Senator’s] election to the Senate and were public knowledge.”  J. Chafetz, Democracy’s Privileged Few 221 (2007).  It is generally understood today, however, that this limitation is in the nature of a prudential restraint. 

This principle would certainly counsel the Senate Ethics Committee against recommending Stevens’s expulsion, but it is less clear that it should prevent the Committee from taking or recommending lesser action.  After all, the fact that the voters wanted Stevens to remain in the Senate would not necessarily mean that they want him to escape all punishment for his actions.  Moreover, even if the Committee chose not to revisit the jury’s findings with regard to false statements by Stevens, it could still consider whether Stevens violated Senate rules.  Indeed, even if the Committee accepted everything said by Stevens in his own defense as true, one could argue that it should find that his actions violated the letter and/or spirit of the gift rules. 

The most difficult issue is what happens if Stevens is convicted and re-elected.  While the principle of respecting the decision of the voters would weigh heavily against expulsion, there would also be a countervailing tradition that Members of Congress, when convicted, normally resign their offices.  If Stevens were not to follow that tradition, the Committee would have to face a serious question of whether to expel him. 

The most relevant precedent would seem to be the case of Senator Harrison Williams, who was convicted on bribery charges in 1980 after being videotaped agreeing to accept a bribe during the Abscam investigation.  The Senate allowed Williams to remain in the Senate for more than a year while he pursued post-trial remedies.  Some Senators thought expulsion was too harsh a remedy for Williams’s conduct.  Eventually, however, the Senate scheduled a vote on expulsion; Williams chose to resign before the vote.  As Dennis Thompson notes, “even in a case of almost pure individual corruption, it took unusually explicit evidence and confirmation provided by a criminal conviction to bring the Senate to the point of imposing its ultimate sanction.  In most cases the accused’s motives are less evident and his colleagues’ judgment less severe.”  D. Thompson, Ethics in Congress 105 (1995). 

Based on the Williams precedent, it seems likely that Stevens would not be expelled at least until he had exhausted his post-trial options.  If he was at the point of actually going to prison, however, the Senate would presumably expect him to resign.  If he failed to do so, at that point the Senate would most likely proceed to expel him.

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