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Senators Inouye and Reid Debate the Stevens Case

Roll Call reports the following debate between Senators Inouye and Reid: 

In a statement released by the Stevens campaign, Inouye argues that his longtime friend will be seated as a Member of the Senate next year if re elected and that he believes the felony convictions will be overturned.

“As the Senate has done in every other instance in its long 220-year history, I am absolutely confident that Ted Stevens will be sworn into the Senate while he appeals this unjust verdict, I am certain that this decision in Washington, D.C., will be overturned on appeal,” Inouye said.

But Reid rejected that reading of Senate history and chastised Stevens for using his friend in a political campaign.

“While I respect the opinion of Senator Daniel Inouye, the reality is that a convicted felon is not going to be able to serve in the United States Senate. And as precedent shows us, Senator Stevens will face an ethics committee investigation and expulsion, regardless of his appeals process,” Reid said.

Lets be clear here.  If Stevens is re-elected, he will be seated as Member of the Senate.  He meets the constitutional qualifications (he has been a citizen for nine years, is an inhabitant of Alaska and is way more than thirty years old) and thus the Senate has no power to exclude him.  So Senator Inouye is certainly correct about that.

As for Senator Reid’s claim that “precedent” shows that Stevens will face expulsion regardless of what happens with his appeal, this is questionable.  Given that no Senator has ever been expelled under circumstances remotely comparable, one certainly cannot claim that precedent demands Stevens’s expulsion.  As I have pointed out, the most relevant precedent is the Harrison Williams case, which suggests that the Senate would allow Stevens the opportunity to seek post-trial relief up to the point that he would actually face the prospect of going to prison.

The first thing that will happen, of course, is that the Senate Ethics Committee will commence an inquiry and review the evidence.  As Rob Walker, former staff director of the committee, has explained, the committee will likely rely heavily on the trial transcript, but also must give Stevens and his counsel an opportunity to present evidence and argument in defense of the charges.  The members of the Committee are then required to make an independent judgment as to whether Stevens is guilty of the criminal charges and/or violations of any Senate rules.

In reality, however, the members of the Committee (and ultimately the Senate as a whole) are likely to be less concerned with the evidence than with the difficulty of squaring their decision with two external judgments that point in opposite directions (1) the jury verdict of guilty and (2) the (hypothetical) decision of Alaska voters to return Stevens to the Senate. 

It is difficult to say at this juncture how the Committee or the Senate would resolve this tension.  In principle, the Senate should make an independent judgment as to whether the offenses established by the evidence warrant expulsion.  Precedent, at least in the legal sense, does not tell us much about what judgment the Senate should make.  It seems most likely, however, that the Senate would follow the practice in the Williams matter and allow Stevens the opportunity to pursue post-trial remedies.

What happens if Stevens cannot avoid going to prison, but still has a chance of getting his conviction overturned on appeal?  Most likely, he would resign, but if he did not, the Senate would probably expel him.  This conclusion is dictated less by precedent than by the assumption that Senators would not be comfortable with the idea of a sitting Senator sitting in jail.    

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