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.

Comments

[Tung Yin]

No. 84, isn't there a big difference between losing your personal liberty versus keeping your elected office but losing a high-ranking command position within the party structure? Granting that the investigation of DeLay may be politically motivated, why exactly is it that we should accord him the presumption of innocence to keep him in as Majority Whip? I think the value of the presumption of innocence actually gets watered down when we apply it to everything. The fact is, Congress could quite legitimately think that the fact that a person gets indicted, while not worthy of stripping that person of freedom, may be enough to justify removing him/her from a leadership position.

[David Giacalone]

I'm leaning toward Bainbridge and Yin on this one, Fedster. In a world where more indictments have been avoided than fabricated due to politics, and where it is the trial court that has to preserve the presumption of innocence not the rest of the nation, having an elected official step down from a leadership position does not seem like an unfair taking of liberty [especially when shadow leadership is such a fine art among legislators, as is the triumphant return after acquittal]. Also, changing the rule to protect a particular leader seems like an umseemly blend of hypocrisy and favoritism.

[Greg]

While there's a presumption of innocence there're reasonable restrictions to be put on those indicted, like not leaving for Mexico, for instance. Resigning a leadership position seems like a reasonable one. The flipside of politically motivated indictments are the endless delays (no pun intended) in any politically charged trial. The grand jury had enough to indict; the fact that DeLay's being protected is so blatantly dishonest I don't even know why this debate is necessary. They don't even feel it's necessary to hide their corruption. This is the party of moral values?

[Al Nye]

Although indictments -- especially in Washington D.C. -- are getting more common and may be subject to political influence, it's still a relatively rare occurance. As lawyers, especially if you practice criminal law, we see clients indicted all the time.

I don't think it's unreasonable to give up some rights upon being indicted. And changing the rules now? That's the height of arrogance.

I vote with Bainbridge.

Al Nye

[MJ]

I can agree that the timing of the rule change this gives an unseemly appearance, however there are a couple of things that distinguish this from the Rostenkowski affair that prompted the rule in the first place.

- Rostenkowski was indicted by a federal grand jury, not a political rival. It's possible that at the time the rule was passed, the house didn't anticipate it would be used by local prosecutors as a political tool (If that's what's happening here).

- The craziness and vitriol of all of the things (on both sides of the aisle) going on surrounding the congressional redistricting in Texas i.e the legislators absconding from the state - five sitting congressman being re-districted out of office - is pretty unprecedented. That makes it not unreasonable to call for a rule change preserving the status quo for 30 days upon indictment until the action could be reviewed

I'd make this argument if the Dems were in charge and did the same thing.

[Aaron]

I'm of the opinion that politicians should hold themselves to higher ethical standards than ordinary individuals - something along the lines of the judge's duty to avoid not only impropriety, but an appearance of impropriety. Given, however, that whatever the criminality of his acts, DeLay has never given a fig about avoiding the apparance of impropriety, perhaps high voluntary standards are simply too much to ask.

I am less concerned about frivolous indictments being issued against high elected officials than I am with those of us among the unwashed masses, as they have ample access to funds, lawyers, and other resources to assist with their defense, both in the media and in the courts. At DeLay's level, a frivolous indicment can also serve as an impetus for reforms which can prevent such indictments from becoming a recurring problem. Also, let's not pretend that the rule change is about the merits of the indictment - it is not, and that's why the rule change represents the height of hypocricy.

A party that demanded high ethical standards from its members, might expect Delay to voluntarily step down from his position while the indictment is resolved, to prevent distraction from the nation's business, Whoops - I think I'm back in that "too much to ask" category of wishes.

In any event, it's lunc time - and something about this post made me hungry. Wait a second - I don't even like ham sandwiches. ;-)

[Deoxy]

I am actually somewhat in the middle on this one.

1) the rule should go, go, GO. Getting an indictment FAR too easy.

2) DeLay should go, too, to avoid the appearance of impropriety, favortism, etc.

Once this is resolved (and it will probably be thrown out with prejudice, as it APPEARS to be all politics and no case, though of course, I could be wrong), DeLay can have his position back (assuming he's found innocent, of course).