Rep. William Jefferson and the Presumption of Innocence

June 7, 2007 Thursday

LENGTH: 1188 words

HEADLINE: Jefferson Deserves Presumption Of Innocence

BYLINE: Jonathan Turley


The 16-count indictment of Rep. William Jefferson (D-La.) this week has produced a spasm of legislative proposals and speeches calling for his expulsion from the House. Frankly, as a longtime critic of Congressional ethics rules, I never thought I would be arguing against an effort to purge or punish an unethical member. However, expelling Jefferson would violate core constitutional principles and likely trigger an intense legal fight. Even Members of Congress deserve a presumption of innocence and their “jury of peers” must remain fellow citizens, not fellow politicians.

Many of us have remarked on the strength of the evidence against Jefferson, including his famous frozen asset problem of the $90,000 found in his freezer. The 95-page indictment details 11 alleged bribery and fraud conspiracies that stretch across Africa.

Yet the merits of the Jefferson indictment are irrelevant to this debate. Expelling a Member before a conviction puts politicians in the role of a jury – meting out punishment in a politically charged environment. With the exception of the carefully structured impeachment proceedings, the framers did not foresee such a role for Members. It would be a dangerous precedent if a majority could declare a colleague presumptively guilty and toss him or her from Congress.

Expulsion before trial also is grossly unfair for a Member who is forced to defend his name in simultaneous proceedings before the courts and Congress. Putting aside the heavy financial burden, Congressional hearings could compromise privileged information or force a Member to waive constitutional rights to make a compelling case against expulsion.

Congress has long recognized those dangers and waited for the judicial system to reach its own conclusions. For that reason, the House waited until 2002 to expel then-Rep. James Traficant (Ohio), who was convicted on corruption charges. The only prior expulsions concerned two Members who were expelled at the beginning of the Civil War in 1861 as traitors.

Ironically, some of the loudest calls are now coming from Republicans who fought efforts of expulsion or punishment in the previous Congress after the indictments of former Majority Leader Tom DeLay (R-Texas) and former Rep. Bob Ney (R-Ohio). Yet, they are not alone. Many embarrassed Democrats supported stripping Jefferson of his powerful committee positions before his indictment and now support an expedited process that could lead to expulsion.

History has shown that public assumptions of guilt often fall short in an actual court of law. Various Members have been unsuccessfully investigated or even prosecuted. Rep. Alcee Hastings (D-Fla.) was acquitted of charges of corruption as a federal judge. While some denounced that verdict, Hastings has now served in the House for 15 years and is viewed by many as someone who has served with distinction.

The Hastings case is a useful point of comparison. Congress waited to impeach Hastings until after his trial. It did impeach despite his acquittal. However, there is a great difference between removing a judge and removing a Representative. Under Article III, federal judges “hold their Offices during good Behaviour.” While the Hastings impeachment was controversial because of his acquittal, it generally was accepted that Congress could impeach him under this authority.

Conversely, it would have been shocking for Congress to try to bar Hastings from service in the legislative branch based on the same evidence.

To expel a Member is to negate the votes of citizens who have a right to select their own representative, regardless of the views of other politicians. In Jefferson’s case, his constituents returned him to office after the details of the investigation were made public. Despite national calls for his ouster, he won 57 percent of the vote in his re-election in November.

The framers were adamant in restricting the authority of Congress to engage in selective pruning of its ranks. During the Constitutional Convention, the framers made reference to a contemporary controversy over the expulsion of John Wilkes from Parliament. Wilkes had publicly attacked the peace treaty with France and, in doing so, earned the ire of Crown and Parliament. After he was convicted and jailed for sedition, Parliament moved to declare him ineligible for service in the legislature. He served anyway, and eventually Parliament rescinded the legislative effort to disqualify him.

The framers feared that, unless Congress was prevented from manipulating its membership, history would repeat itself. Citing the Wilkes case as “worthy of our attention,” James Madison warned that if Congress could engage in such manipulation it would “subvert the Constitution.”

Likewise, Alexander Hamilton noted that “[t]he qualifications of the persons who may choose or be chosen … are defined and fixed in the Constitution, and are unalterable by the legislature.”

This history has helped courts understand the meaning of the Qualifications Clause of Article I, Section 2, which references state laws as setting qualifications for Members. Despite this language and the authority of Congress to punish its own Members, the Supreme Court has stressed that neither the states nor Congress can manipulate qualifications to exclude politicians. As the court noted in U.S. Term Limits v. Thornton, the framers feared that, if the membership of Congress could be manipulated, Congress could become “a self perpetuating body to the detriment of the new Republic.”

At least Wilkes had the benefit of a trial and had served time for his alleged crime. Expelling a Member before conviction would allow such manipulation by majority vote based on popular sentiment or political convenience – an obvious danger when our Congress is divided so closely between the parties. These dangers are magnified in a Congress that is now claiming the unprecedented right to create new voting Members. The House recently passed legislation that would, for the first time in history, create a new type of voting Member in the House – giving the District of Columbia a voting representative despite the fact that it is not a state. With the expulsion effort, Congress would not only be asserting the right to create new voting Members for federal enclaves but also the right to expel other Members suspected of crimes.

Politics ultimately may trump principle on this question. In a Congress under intense public criticism for its failure to pass meaningful ethics reforms, Jefferson has become a useful object lesson for Members to demonstrate their commitment to good government. Suddenly, the House looks like a Claude Rains convention with 435 Members practicing their “shocked, shocked” sound bites.

Jefferson recently resigned his only remaining committee position on the Small Business panel. He has been marginalized and vilified – for good reason. However, the House would do far greater damage to its institution if it yields to the temptation to pronounce guilt before a colleague has had his day in court.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University.

One thought on “Rep. William Jefferson and the Presumption of Innocence”

  1. Mr. Turley, I agree with your argument against expelling Rep. Jefferson before his day in court, in general. It’s good of you to explain to the public, as you’ve just done, on the *why* of not expelling Rep. Jefferson – according to our Constitution and on the basis of fairness. Rep. Jefferson will have his day in court and has been rightfully stripped of his committee positions, and thoroughly vilified in the public square.

    You mentioned, in passing, that Rep. Jim Traficant (D-OH) was not expelled from Congress until he was convicted on corruption charges. The operating word here is “convicted” and it should be known that he was “convicted” without being able to present exculpatory evidence and the fact that the Judge should have been recused from the case due to the fact that her husband had once represented the key witness against Rep. Jim Traficant. In all fairness to Rep. Traficant, these facts should have been known to the jury. All the witness against Rep. Traficant have presented affidavits sworing they were coerced into testifying against Traficant under threat of their own imprisonment. You can see for yourself, the exculpatory affidavits and transcripts on a website at this URL: .

    I’d be very interested in what you have to share with your readers about this exculpatory evidence – for all to see! – and perhaps why it hasn’t been given any serious consideration or “air” time.

    By my own eyes and ears, I’ve watched Rep. Traficant’s testimony before Congress and have followed this case because I think something stinks about it. Traficant made public the reasons for his disdain towards the DOJ, former Atty. Gen. Janet Reno, the DOJ for almost allowing an innocent American be executed for being “Ivan the Terrible of Treblinka” and the powerful public affairs committee that smeared Traficant after he proved Demjanjuk’s innocence. So many reasons for shutting up and doing away with Rep. Jim Traficant, who was convicted on perjured testimony of key witnesses and no physical evidence! Isn’t this a “first” in criminal history? I don’t know.. I’m hoping you can clear this up for interested Americans like me.

    In the case of Rep. Jefferson, there’s “evidence” of wrong doing, even if we were to hone it down to one exhibit – the frozen moola. However, all of this should be proven in the court of law with all the pertinent evidence and information at hand; no key witnesses that have it in for Jefferson and know that ‘perjury goes unpunished’ these days, and no trumped up charges.

    America needs to clean up its act judiciously, and I believe your a man to do it.

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