Q: As a longtime Chicago resident, I have been keeping a close eye on the saga surrounding Roland Burris’ (D-Ill.) appointment to the Senate by former Gov. Rod Blagojevich (D). Prosecutors opted not to press charges, and the Senate Ethics Committee a few weeks ago announced that it had concluded its investigation and issued a public letter of qualified admonition to Burris. In response, Burris has said that the committee cleared him of the charges. Others have said the letter had the opposite effect. I am having trouble assessing who is right. What is the significance of a letter of qualified admonition?
[IMGCAP(1)]A: This question goes right to the heart of the authority of the Senate Ethics Committee, so let’s start there. The committee was established in 1964 to oversee the Senate’s authority to discipline its own Members. One of the committee’s primary duties is to investigate allegations of Senators’ misconduct, beginning with what is called a “preliminary inquiry.— After the committee conducts such an inquiry, it has several options. One of those options is to issue a public letter of admonition. According to the Senate resolution governing the committee’s procedures, such a letter may be appropriate if there is evidence of a violation, but the violation is “inadvertent, technical, or otherwise of a de minimis nature.— A letter of admonition “is not considered discipline— and is not subject to appeal.
In Burris’ case, on Nov. 20 the committee issued a “Public Letter of Qualified Admonition— to Burris for “actions and statements reflecting unfavorably upon the Senate in connection with [his] appointment to and seating in the Senate.— Specifically, the committee found that Burris made sworn statements to the Illinois House of Representatives that were “inconsistent, incomplete, and misleading.— The letter also stated that Burris’ “shifting explanations— about the sworn statements “appear less than candid.— Finally, the letter said that Burris had a telephone conversation with Blagojevich’s brother that was “inappropriate in its content and implications.—
Reactions to this letter have been difficult to reconcile. Burris himself said he was “pleased— and issued a news release titled “Senate Ethics Committee Clears Senator Roland W. Burris of Legal Wrongdoing— and cited the language in the committee’s letter that it did not find evidence supporting “any actionable violations of law.— On the other hand, his fellow Senator from Illinois, Dick Durbin (D), said the committee found that Burris’ actions had “brought discredit on him and the Senate.—
So what is the significance of a “letter of qualified admonition—? The answer is that no one really knows. At a minimum, it does seem safe to say that a letter of qualified admonition is somehow less serious than a letter that has not been “qualified.— Last year, the committee issued a letter of qualified admonition to then-Sen. Pete Domenici (R-N.M.) for creating “an appearance of impropriety that reflected unfavorably on the Senate.— By comparison, it issued a “letter of admonition— to then-Sen. Larry Craig (R-Idaho) for “improper conduct reflecting discreditably on the Senate.— It is not clear that any real consequences flowed from its decision to use the word “qualified— in one letter but not in the other.
Perhaps no case better captures the inherent ambiguity of ethics rebukes than that of former Sen. Herman Talmadge (D-Ga.), who in 1979 faced a committee investigation for financial irregularities, including excessive reimbursements taken from his office account. The committee ultimately found four violations and recommended that the Senate formally discipline Talmadge.
While some Senators supported resolutions using the terms “censure— or “condemn,— Talmadge himself argued that the committee should “reprimand— him. The committee rejected all of these alternatives and chose instead the word “denounce.— The reason the committee gave for using the word “denounce—? Essentially, it was just to be different. The committee explained that its purpose was to distinguish Talmadge’s case “from those earlier matters in which the Senate censured’ or condemned’ a Member— so that the committee could articulate “its judgments and recommendations … with words that do not depend on analogy to dissimilar historical circumstances for interpretation.—
This begged the obvious question. Ethics Chairman Howell Heflin (D-Ala.) tried to explain: “Some people … felt that the word denouncement’ was weaker than the word censure’ … Some, on the other hand, felt that it was stronger … I think it us up to each individual to give whatever meaning and connotation he may wish.— Talmadge took Heflin up on his offer. He called the committee’s action a “personal victory.— Sound familiar?
C. Simon Davidson is a partner with the law firm McGuireWoods LLP. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.