Life and liberty in Illinois
A Response

The intersection of criminal law and politics

Should a Congressman be required to resign his leadership position if he is indicted?  Before today, internal Congressional rules mandated, "Yes."  The rules were spawned by Republicans after Dan Rostenkowski, a Democrat, refused to resign his leadership position after being indicted.  But the Republicans now want to change the rules, since their own Tom DeLay is in warm water.

At first, I agreed with Profs. Bainbridge and Heller, who called the rule change "unseemly" and "hypocritical."  Then Amy Ridenour changed my mind:

When the House GOP caucus originally approved the rule saying a party leader should step down if indicted, I agreed with it. I no longer do. I've seen too much use of the criminal justice system as a political tool here over the last ten years, the vast majority of the cases never receiving media coverage. Keep in mind, too (as I suppose most of you don't know), that I've been running a DC think-tank for 22 years, so I have some basis for comparison. There are good, honest people in town you've never heard of (let alone the high profile targets) who could probably wallpaper a room with copies of subpoenas. And put their kids through college on the legal fees they've paid.

I agree with Ms. Ridenour.  An indictment, sadly, often has little to do with legal gulit or innocence.  All one need do is tick off a powerful person - whether that be a local police officer or United States Senator.  You don't have to be in D.C. to witness a witch hunt.

Prof. Bainbridge makes a compelling counter-argument here.  Citing James Joyner he themes his case as one of procedure:

Don't change the rules in the middle of the game is an excellent way of capturing the problem with this maneuver. The GOP adopted the rule to highlight their claim of ethical superiority over the Democrats; to repeal it now smacks of hypocrisy.

It's a very close call for me, but I will error on the side of the presumption of innocence.  Until DeLay is convicted, he should hold his position.  Of course, the counter is that by removing DeLay, they're not saying he does not deserve the presumption of innocence.  Rather, they're saying that even if the rule is a bad one, changing it now causes Republicans to lose the moral high ground.  After all, what looks shadier than adopting a rule that hurts your enemy, and then repealing that rule to help your ally?

Although I see that point, there is no higher ground than the presumption of innocence.  When we remove someone's honor merely because he's indicted, we necessarily prejudge him.  Any rule that goes against the presumption innonce is a bad one, and should be shucked, even mid-stream.

UPDATE: Ms. Ridenour sticks to her compelling argument.  I find her first point the most powerful:

I believe it is bad public policy to let law enforcement authorities determine the leadership of Congress. Voters and caucus members should do so.

Please click here to go to her carefully reasoned post.