The Burris problem and what to do about it

Maybe the Senate has the power not to seat him. Or maybe he can be persuaded to refuse appointment, waiting until after Blagojevich has been impeached, convicted on impeachment, and removed from office. That process ought to be swift; he’s not a criminal defendant, and not entitled to a criminal defendant’s rights.

So Rod Blagojevich has decided to go out as he came in: as a total jerk making a total mess of things.

Now what?

Roland Burris seems to have a reputation as reasonably clean but not too bright. (Bonus detail: Burris named his son “Roland” and his daughter “Rolanda.”) Burris is black, and would be the only black Senator; chronic race-baiter (and ex-Black Panther) Bobby Rush promptly started to rant about “lynching.”

Burris has been a losing candidate for just about every major office in Chicago and Illinois. His age alone would virtually bar him from having a long enough Senate career to make much of an impact. He might also manage to lose to a Republican were he to run for election in 2010. But at least on paper Blagojevich has the power to appoint Obama’s replacement.

The Illinois Secretary of State (also black) says he’ll refuse to sign the paperwork certifying the appointment, and the Senate rules seem to require his signature before a Senator is seated, but it appears that under Illinois law the Secretary of State has no right to interfere; if he stands his ground, Burris could probably get a court order to make him do his job.

The Democrats in the Senate unanimously asked Blago not to appoint, and Obama endorsed that appeal. Now Reid’s office says that the Senate will attempt to refuse to seat Burris.

It’s not clear whether the Senate has the authority to do so. The Constitution makes each House the final judge of the “returns” of its members; whatever the Minnesota courts finally do about the Franken-Coleman case, in the end the Senate votes on which one gets the seat, or alternatively could refuse to seat either one and ask Minnesota to run a new election. But the Supreme Court ruled, in a case involving Adam Clayton Powell, that the House of Representatives could not arbitrarily refuse to seat a duly elected and qualified Member.

Reid’s office issued a statement saying that the process run by Blagojevich to fill the seat was so hopelessly tainted by corruption that no result of that process has legitimacy. Making the process, rather than Burris himself, the issue, distinguishes this case from the Powell case. There’s at least a reasonable case to be made that if Blago had actually consummated a deal to trade the Senate seat for a job, and if that fact had come to light, the Senate would have been within its rights to refuse to ratify that corrupt deal by seating the Blago appointee, even if the appointee himself had been an innocent beneficiary of the deal rather than a willing participant.

Is the current case enough like that case to allow the courts to defer to the Senate? I guess we’re going to find out.

There’s an argument that as long as Blagojevich remains in office he retains all the powers of that office, and that the Burris nomination is now a fait accompli that cannot be legally reversed. Politically, it seems to me that Obama and Reid have taken the only possible position, distancing themselves from corruption as much as they can. Better to have Burris forced down their throats by the courts than to seem to acquiesce in Blago’s antics.

Best idea of all, if it can be made to work: Burris should be persuaded to refuse the seat after Blagojevich has been bounced. Having solved a national problem at some personal sacrifice, he would be entitled to have something nice done for him. And I think he could reasonably trust his old friend Barack Obama to do something appropriate without insisting on having an explicit deal.

In the meantime, we’re down a Senate seat, which will complicate the problem of beating back Republican filibusters. That means we’d like to get both Illinois and Minnesota resolved ASAP.

A couple of subsidiary issues:

1. What happens if the Illinois Secretary of State stalls on the certification of Burris until Blagojevich has been convicted on impeachment and dismissed from office? Could the new Governor retract the appointment and choose someone else? When that paperwork reached the Senate, would the Senate be within its powers to seat the new appointee? Or is Burris in law already a Senator, with all over bar the shouting?

2. How long will the impeachment hearing and trial take? The more closely the Illinois Legislature models those processes on the process of criminal indictment and trial, the longer it will take. But there’s no reason to do so.

This is a political matter, not a criminal one. Blagojevich is not at risk of losing his liberty, so the elaborate safeguards built into the criminal process aren’t required. He is entitled to a fair process; he is not entitled to a presumption of innocence or to a “reasonable doubt” standard of proof. He has the right to remain silent, but his silence could be held against him (as is true in any civil case). And most of all has no right to delay.

The Governor doesn’t seem to be claiming that the quotations of his remarks included in the indictment were invented, but rather that they were not meant seriously. So I think a reasonable impeachment hearing could be crowded into a morning, with the trial to be held the following afternoon.

Here’s how I’d like to see it run:

At the impeachment hearing before a committee of the Illinois House, someone from Fitz’s office introduces the transcripts or the tapes and testifies as to how they were made. Blago’s lawyers can cross-examine. The committee invites Blago to testify as to whether he said what he said, and to say anything else he’d like to have heard in his defense, and refuses his demand to call other witnesses on the grounds that it’s his words that are in question, not anyone else’s.

Since he said what he said, the committee then votes to impeach him for having attempted to sell his office, in violation of his oath of office and of his duty to execute that office honestly. That afternoon, the full Illinois House debates the committee report and votes articles of impeachment to be sent to the Illinois Senate for trial.

The Senate opens the trial by taking judicial notice of the testimony at the impeachment hearing, and calls no additional witnesses. It invites Blago’s lawyers to submit their own witness list within 24 hours, with a proffer of what facts each witness will establish. That done, the Senate votes to accept the proffers as evidence without actually hearing the witnesses, and proceeds to debate and vote.

Guilty. New governor.

No fuss, no muss, no bother, no appeal.

I’m afraid that the false equivalence between the impeachment process and a criminal trial, plus the desire of some legislators to grandstand for the cameras, will drag this out for months. That would be a shame.

Footnote Speaking of “shame,” the next time someone tells you that you have to vote for some crooked lunatic because he’s our crooked lunatic, just think about Blagojevich.

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