Impeachment (or expulsion) first, prosecution later

If impeaching Blago makes it harder for Fitz to put him away, too bad. Business before pleasure.

So Fitz says impeachment proceedings against Blago could interfere with criminal prosecutions.

Tough noogies.

Fitz has his job: putting bad guys in jail. The Illinois Legislature has its job: getting rid of a corrupt governor via impeachment. If doing their job makes it harder for him to do his, that’s not their problem.

Same is true for Congressional corruption: I would give absolute priority to expulsion over prosecution. There’s no Fifth Amendment issue raised, since an expulsion or an impeachment carries no criminal penalties. The accused has the right to remain silent, and the legislature can properly draw adverse inferences from that silence. And neither expulsion nor conviction on impeachment requires proof beyond reasonable doubt, or even the commission of a legally cognizable crime. (Not showing up for work is hardly a criminal matter, but if a President simply stopped doing his job that would surely be the sort of “high misdemeanor” – where “high” means “state,” as in “high treason” – the Constitution provides for.)

The Framers never imagined a federal law enforcement machinery powerful enough to bring down a sitting Member of Congress. That’s the reason they committed Legislative Branch discipline to the two Houses. Congress has been slacking off in that regard, in part by hiding behind the criminal process. But Constitutionally, that’s just completely upside down.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com