Skip to content
 

“Nothing I have done as a senator, nothing, has brought dishonor on this institution . . .”

“And I am confident the ethics committee would agree.”

I was struck by these words from Senator Al Franken’s resignation speech (or perhaps semi-resignation speech) today. While Franken is to some extent denying the factual allegations (i.e., groping various women) made against him, the point of this particular line was to stress that he has done nothing “as a senator” to dishonor the Senate. One has to assume that he is saying that even if the allegations against him are true, they would not constitute “improper conduct which may reflect upon the Senate,” as these words are used in S. Res. 338 (2)(a)(1). (Otherwise there would be no reason for the qualification “as a senator” in his statement.).

The Senate Ethics Manual makes clear a senator may be disciplined “for any misconduct, including conduct or activity which does not directly relate to official duties, when such conduct unfavorably reflects on the institution as a whole.” Senate Ethics Manual at 13; see also id. at 432-36 (reviewing conduct found by the Senate to constitute “improper conduct which may reflect upon the Senate” or bring the Senate into “dishonor and disrepute”). But in all of the cases in which the Senate has taken disciplinary action, there has been at least some indirect connection between the misconduct and the senator’s official duties or status.

The most tenuous such connection was in the case of Senator Larry Craig, who was charged with a misdemeanor for soliciting sex in a men’s bathroom at the Minneapolis airport. The Senate ethics committee ultimately issued a letter of admonition to Craig over the incident, in which the committee found that Craig had improperly attempted to use his position to avoid being arrested and charged, and then had improperly attempted to avoid the consequences of his guilty plea.  The committee’s letter to Craig concluded that “[t]he conduct to which you pled guilty, together with your related and subsequent conduct as set forth above, constitutes improper conduct reflecting discreditably on the Senate.” (Yes, the committee used the word “pled,” which apparently means its letter was written by Donald Trump).

Simon Davidson, Roll Call’s ethics columnist, and I debated at the time whether the Craig case involved the first instance of the ethics committee punishing a senator in part for purely personal conduct (i.e., soliciting sex in a bathroom) or whether the committee’s action was dependent on Craig’s subsequent actions which involved conduct at least somewhat related to Craig’s official duties. My view was that the committee was in fact exercising jurisdiction over purely personal conduct, though attempting to downplay that aspect of its action. As I noted, “the committee understandably does not want to be in the business (or advertise that it is in the business) of investigating or punishing sexual misconduct or other common indiscretions by Senators.”

My broader interpretation of the Craig admonishment would support the committee’s exercise of jurisdiction in the Franken case, except for one very important distinction. Craig was a senator at the time he engaged in the misconduct. Franken was not. As mentioned in my last post, the Senate has never disciplined any senator for conduct that occurred before he or she entered the Senate. Moreover, it has on a number of occasions refused to do so precisely because of doubts about its jurisdiction over such matters.

The combination of the personal nature of Franken’s alleged misconduct and the fact that it occurred before he entered the Senate makes it highly questionable whether this is a matter that the ethics committee could even investigate based on past precedent. There is certainly no precedent that would support the imposition of any serious sanction based on the facts alleged, even if they are all true.

Which is perhaps why Franken wanted the matter before the ethics committee in the first place.

Leave a Reply