The Jefferson problem

Seat him. Hold hearings. Expel him.

David Kurtz, guest-blogging at TPM, suggests refusing to seat William Jefferson (D-Cold Cash). Bad idea. The Constitution makes the House the judge of its own returns, but there’s no doubt Jefferson got the most votes Saturday. There’s no Constitutional authority for refusal to seat someone just because he happens to be a crook.

But there is Constitutional authority to expel a member, by a two-thirds vote. Jefferson, along with several of the not-yet-indicted Abramoff/MZM crooks, ought to be called before the Ethics Committee and asked under oath where the money came from. He would have the right to plead his Fifth Amendment privilege against self-incrimination, on which the Committee would have the right to draw the appropriate inference and recommend his expulsion.

No, this isn’t a violation of the principle “innocent until proven guilty.” The question isn’t criminal guilt, it’s fitness to serve in the House. Whether Jefferson, Doolittle, et al. go to prison is up the the prosecutors and the courts. Whether they continue to make our laws is up to the House of Representatives.

The current practice of deferring Congressional investigation of Members’ misconduct until the conclusion of the criminal process subverts the clear intention of the Framers that the House (and Senate) police its own. Time for a little originalism.

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:

12 thoughts on “The Jefferson problem”

  1. Of course, the Founders' "intention that the House and Senate police their own" was based — like so many other aspects of the Constitution — on their fond belief that political parties should and would be kept from coming into existence at all. It would, I think, be a good idea that Congress at least try to set up some semi-independent board to appraise its members' conduct — an idea approved of not only by Lieberman and Olympia Snowe, but by Marty Meehan.

  2. It's amazing that Jefferson hasn't yet been charged with anything. They have videotape of him asking for a bribe; they found the cash in his freezer. What's the grand jury waiting for?
    By comparison, an Alaska state representative was indicted, arrested, and jailed last week for bribery and money laundering. The FBI knows how to act quickly when it wants to.

  3. It would be interesting to see the Democrats vote to impeach him and see if Republicans would vote against it (on principle?) or because they thought it would be politically advantageous to have a corrupt Democrat in the congress.
    Quite a disappointing result yesterday though.

  4. Meanwhile Ralph Reed, Grover Norquist, Tom Delay, Doolittle and others and walking free with no public demands for thier resignations etc.
    This reminds me how the media spent months on Gary Condit's supposed guilt even whjile there was no body and ignored a dead women found in Scarboroughs office on a Monday after a surprise resignation the Friday before.
    Jefferson is probably guilty but Doolittle's misdeeds as well as the others mentioned have been known for a far longer time. So please no false sacrimony of why a corrupt lawmaker is walking free while others who were involved in laundering millions are given the benefit of doubt and accorded the dignity of thier office.

  5. Ken, you do realize your argument basically boils down to "we should be no better than the Republicans", right?

  6. Ken,
    Delay resigned from the House last summer. Neither Ralph Reed nor Grover Norquist hold any position of public trust that I'm aware of. Doolittle narrowly won re-election in CA-04, and yeah, he should be called before the ethics committee and asked some rather pointed questions, then kicked out along with Jefferson.
    One point about Jefferson: I think the Democrats should kick Jefferson out of the Democratic Caucus before he faces the ethics committee.

  7. Democrats should be no better than Republicans in some ways. Specifically, they shouldn't treat the other party's minority any differently than they were treated as the minority. The Republicans have made some ugly ugly rules and life is hell for the minority party, and they're about to get a richly deserved taste of it.
    Democrats should strive to be an awful lot better than Republicans about ethics, though. Jefferson is a crook, and should receive any savage public humiliation that's within the power of the Democratic caucus to visit upon him.
    They play hard, we play hard.
    They're crooks. We're not.
    There's a difference.

  8. I HOPE they're crooks and we're not. We had better also consider the behavior of Rahm Emanuel in connection with the Foley scandal, as noted by Glenn Greenwald (… ). The best course of action for the Dems right now might be to re-open that investigation and throw out everyone who helped cover up Foley's conduct until October 2006, including Hastert and Tom Reynolds as well as Emanuel. Instead, however, the House Dems seem to be cranking up to make Emanuel their official spokesman (… ). Brilliant!

  9. Laertes,
    Most ethical systems have an equivalent of the golden rule in them somewhere: treat others as you would like to be treated.
    Now, perhaps we can interpret the 1994-2006 Republican Majority's rules as being the way they want to be treated, and that's one thing. But the rule is to treat them as we'd like to be treated, and that's something different entirely.
    Provided that Pelosi can maintain intra-party discipline (and I know that's a big if) she and Hoyer and the committee chairs should treat the Republicans better than they treated us. She should allow them to propose amendments, and then stuff any that don't further the progressive agenda right back in their faces. She (and the committee chairs) should hear legislation with R sponsors, then kill it in committee. Allow them the forms, but no substance whatsoever.
    An idiot once said, "Elections have consequences." This just proves the Texas adage that even a blind pig can find an acorn. But we should be polite about it.

  10. Bruce, I think Greenwald's pretty confused about the quality of the evidence and logic he's using to make that charge – you might want to reconsider imagining it was Dean in question.

  11. Isn't the entire point of the Fifth Amendment that you can't draw an inference from someone's invocation of it? If you could, the protections it offers would cease to exist, as invoking the Fifth Amendment would itself constitute self-incrimination.

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