Whats left of the case of the United States v. Theodore F. Stevens on felony false statement charges will be decided soon. Regardless of the outcome of Sen. Ted Stevens (R-Alaska) criminal trial, the Senate Ethics Committee will have to grapple with the underlying allegations of improper acceptance of gifts and failure to report those gifts. How might the Ethics Committee approach the task?
Whatever the verdict, if Sen. Stevens loses his Senate race, the Ethics Committee likely will not act on the charges against him since, as a practical matter, the committee would lose jurisdiction over him at the close of this Congress. Generally, under the financial disclosure statute, the committee would retain limited jurisdiction, even over a former Senator, to refer a matter to the Department of Justice for enforcement if the committee believed the Senator had willfully filed a materially false or incomplete report. But DOJs current criminal case against Sen. Stevens concerns these very disclosure issues, so a referral to DOJ for enforcement would be meaningless here.
What may the Senate Ethics Committee do in a situation where a Senator is found guilty on felony counts at trial but then wins re-election? Before discussing this scenario, I want to be clear that I am not implying any position either on the merits of the criminal charges against Sen. Stevens or on what the outcome of his trial may be.
Under the rules of the Senate, conviction on felony counts does not automatically disqualify a Senator from Senate service. Where a Senator is convicted of felonies but wins re-election, therefore, the Ethics Committee would follow its regular procedures to determine whether the Senator violated Senate standards of conduct and, if so, to determine what, if any, sanction to impose, or to recommend that the Senate impose, on the Senator.
First, the committee would determine, through a confidential preliminary inquiry, whether there is substantial cause to conclude that a violation within the Committees jurisdiction has occurred, such that an adjudicatory review by the committee is merited. An adjudicatory review would involve public, adversarial evidentiary hearings (unless waived by the Senator) on any statement of violations issuing from the preliminary inquiry; at this stage, any charged violations would have to be proved by clear and convincing evidence (not by the more exacting trial standard of proof beyond a reasonable doubt).
Following a conviction at trial, the most efficient and effective way for the Ethics Committee to obtain and present evidence would be to rely as much as possible on certified copies of the trial transcript and exhibits. That would be consistent with committee rules and committee precedent. In its 1981 investigation and adjudication of New Jersey Democratic Sen. Harrison Williams (following his bribery conviction arising out of the governments ABSCAM sting operation), the Senate Ethics Committee and its then-special counsel Bob Bennett relied primarily on the certified record of the Williams trial and related court proceedings. The Ethics Committee moved forward on the Williams matter within four days of the jurys verdict, notwithstanding that Williams post-trial motions and appeal were pending. (Four months later the committee recommended that the full Senate expel Williams; he retained his seat for another six months before resigning.)
Is reliance on the record of a criminal trial as evidence in Ethics Committee proceedings fair? It can be if, as committee rules require, the Senator and his counsel may call witnesses (including any who testified at trial) and introduce evidence. For any Senate ethics proceeding in the Stevens matter to be fair, however, the committee would also have to permit the Senator and his counsel to present testimony and evidence on, and argue the issue of, alleged government conduct in the criminal investigation and trial.
Generally, the Senate Ethics Committee may act on allegations that a Senator has violated a law or Senate rule or has otherwise engaged in improper conduct which may reflect upon the Senate. So in any proceedings based on the record of a criminal trial, the members of the committee would determine whether, in their own judgment, the criminal law violations proved at trial were also established before the committee. But if precedent is followed, the committee would determine whether the record also supported the finding of violations of specific Senate rules for example, the gifts rule and of the general, open-ended standard that Senators avoid improper conduct.
What if the jury cant reach a unanimous verdict in the trial? If the jury hangs, the Ethics Committee likely would wait to see if the Department of Justice seeks to retry the case before deciding whether to commence ethics proceedings. If DOJ decides on a retrial and assuming the judge has not either entered a judgment of acquittal or dismissed the indictment prior to a retrial the Ethics Committee probably would continue to defer its proceedings pending the outcome of the new trial.
If there is no retrial after a hung jury or Sen. Stevens is acquitted at trial, could the Ethics Committee let the matter rest there and not take it up at all? Here it is important to keep in mind that under Article I, Section 5 of the Constitution, the Senate has the independent right and authority to determine whether and how to punish its Members for disorderly behavior. Automatic deferral by the Ethics Committee to the outcome of a criminal trial arguably would not fulfill this independent disciplinary authority. Further, deferral after an acquittal would not be required since, as noted above, the standard of proof at all phases of ethics proceedings is lower than the proof beyond a reasonable doubt standard applicable at a criminal trial. So, following an acquittal, the committee could determine to conduct proceedings up to and through the adjudicatory review phase, could recommend that the full Senate impose sanctions and, in doing so, could rely on the evidentiary record developed at trial.
But this general discussion of Senate Ethics Committee authority does not reflect the specific realties the committee would face if Sen. Stevens were to be acquitted at trial on all criminal charges. Following an acquittal, would the Ethics Committee deem it an appropriate exercise of its authority (or an appropriate occasion to hold public hearings) to go forward on charges the evidentiary basis for which many Senators likely would see as seriously lacking? Again, the committee could go forward to and through a public adjudicatory review, but it also could evaluate the trial evidence in a preliminary inquiry and determine that further proceedings are not merited.
There is an obvious issue that I have so far ignored and that could confront the Senate Ethics Committee. Generally, if the Ethics Committee determines that the charges against a Senator are proved, then, depending on the seriousness of the charges, the committee may vote to reprimand that Senator or recommend that the full Senate censure or, upon a vote of two-thirds of the Senates Members, expel that Senator. But if the voters of Alaska re-elect Stevens after having the opportunity to consider the widespread and detailed public reports of the charges and evidence against him and to consider the outcome of the trial (even if a conviction on all counts), what justification would the Ethics Committee, or indeed the full Senate, offer for pursuing possible discipline of the Senator? In a case where, even if there were a conviction, the Senator would certainly be free pending a lengthy appeal, this is not an easy, or just an academic, question. (Just as felony convictions would not automatically disqualify a sitting Senator from serving, such convictions would not provide a basis for the Senate to bar a newly elected or re-elected Senator from being sworn in and taking his or her seat, as the Supreme Courts 1969 decision on the improper exclusion of Adam Clayton Powell from the House established.)
Defense of the Senates independent, constitutional authority to discipline its own Members and to set and uphold its own standards of conduct is a compelling stance vis-à-vis the executive and judicial branches. But how compelling would this defense of the Senates disciplinary prerogative be and how compelling should it be in opposition to the judgment and will of the ultimate sovereign, the people?
Robert L. Walker is of counsel at Wiley Rein. He previously served as the bipartisan chief counsel and staff director of the Senate Ethics Committee and the House ethics committee and was also a prosecutor with the U.S. attorneys office in D.C. and with the Department of Justice.