Category: Congress

Congress, Constitutional Law, Media, Politics, Testimony

Press Freedom and the War on Terrorism: Testimony in the House Intelligence Committee

Statement for the Record
Jonathan Turley
J.B. and Maurice C. Shapiro Professor of Public Interest Law
George Washington University Law School

May 26, 2006

Before the Permanent Select Committee on Intelligence
United States House of Representatives

I.
INTRODUCTION

Chairman Hoekstra, Representative Harman, members of the Select Committee, thank you for inviting me to testify on the role and responsibility of journalists in covering classified subjects.
The subject of today’s hearing carries particular significance for me as someone who regularly works in both the law and the media. On the legal side, I hold the Shapiro Chair for Public Interest Law at George Washington University where I teach relevant subjects that range from constitutional law to defamation to criminal procedure. In addition to writing on national security subjects as an academic, I have served as counsel in a variety of national security and espionage cases, including as lead counsel in the current terrorism case United States v. Al-Timimi. My litigation background includes cases that have dealt with attorney and journalistic privileges as well as executive privilege and the military and state secrets privilege. Due to my work in cases handling classified material, I have held a clearance since the 1980s.
On the media side, I have worked as a legal commentator for roughly two decades. I am a member of the USA Today Board of Contributors and write regularly for various newspapers, including The Washington Post, Los Angeles Times, Chicago Tribune, and other publications. I have also had four stints under contract with NBC and CBS news and continue to appear as a legal analyst regularly on various broadcast and cable programs.
Many lawyers and journalists have become increasingly alarmed by the erosion of protections for the media in this country. While we often refer to our country as the cradle of press freedom, it is not true that the United States currently represents the high water mark for journalistic rights and privileges. Despite our great tradition of a free press and our extensive media industry, other nations now extend greater protections to their reporters and recent coercive measures against reporters have made the United States an area of considerable concern for international organizations.
The recent controversy over press freedom comes at a time when we have never been more dependent on the Fourth Estate to challenge and check the government’s otherwise unbridled authority. In the last few years, we have faced one of the most serious constitutional crises in our history. President Bush has claimed the authority to violate or to circumvent federal law when he deems it to be in the nation’s interest. There continues to be a raging debate over the President’s authority to order warrantless domestic surveillance and other controversial (and potentially criminal) operations. These are controversies that the Administration obviously would have preferred to avoid. Much anger has been directed at the media and there have been calls for new penalties and prosecutions for reporters and their sources. Continue reading “Press Freedom and the War on Terrorism: Testimony in the House Intelligence Committee” →

Congress, Politics, Testimony

D.C. Vote in Congress: House Judiciary Committee

STATEMENT FOR THE RECORD
JONATHAN TURLEY
SHAPIRO PROFESSOR OF PUBLIC INTEREST LAW
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

LEGISLATIVE HEARING ON H.R. 5388,
THE “DISTRICT OF COLUMBIA FAIR AND EQUAL HOUSE VOTING RIGHTS ACT OF 2006”

SEPTEMBER 14, 2006

SUBCOMMITTEE ON THE CONSTITUTION
COMMITTEE ON THE JUDICIARY
THE UNITED STATES HOUSE OF REPRESENTATIVES

I.
INTRODUCTION

Chairman Chabot, Ranking Member Nadler, members of the Subcommittee, it is an honor to appear before you today to discuss the important question of the representational status of the District of Columbia in Congress. I expect that everyone here today would agree that the current non-voting status of the District is fundamentally at odds with the principles and traditions of our constitutional system. As Justice Black stated in Wesberry v. Sanders: “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” Continue reading “D.C. Vote in Congress: House Judiciary Committee” →

Congress, Constitutional Law, Politics, Testimony

Testimony: D.C. Vote in Congress (Senate Judiciary Committee)

STATEMENT FOR THE RECORD
JONATHAN TURLEY
SHAPIRO PROFESSOR OF PUBLIC INTEREST LAW
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

ENDING TAXATION WITHOUT REPRESENTATION:
THE CONSTITUTIONALITY OF S. 1257

MAY 23, 2007

COMMITTEE ON THE JUDICIARY
THE UNITED STATES SENATE

I.
INTRODUCTION

Chairman Feingold, Senator Specter, members of the Committee, it is an honor to appear before you today to discuss the important question of the representational status of the District of Columbia in Congress. At the outset, I believe that it is important for people of good faith to acknowledge that this is not a debate between people who want District residents to have the vote and those who do not. I expect that everyone here today would agree that the current non-voting status of the District is fundamentally at odds with the principles and traditions of our constitutional system. As Justice Black stated in Wesberry v. Sanders: “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.”

Today, we are all seeking a way to address the glaring denial of basic rights to the citizens of our Capitol City. Clearly, this is a matter that is heavily laden with passions from decades of disenfranchisement. However, there is a tendency to personalize the barriers to such representation and to ignore any countervailing evidence in the constitutional debates. In the last Senate hearing, my friend Delegate Eleanor Holmes Norton told Senators that if they are going to vote against this bill, “do not to blame the Framers blame Jonathan Turley.” Del. Norton went further to argue that it was “slander” to claim that the Framers intended to leave District residents without their own representatives in Congress. In reality, I have long argued for full representation for the District and abhor the status of its residents. As for claims of slandering the Framers, truth remains an absolute defense to defamation and the record in this case could not be more clear as to the intentions of the Framers. While some may view it as obnoxious (and indeed some at the time held the same view), the Framers most certainly did understand the implications of creating a federal enclave represented by Congress as a whole.

Unlike many issues before Congress, there has always been a disagreement about the means rather than the ends of full representation for the District residents. Regrettably, I believe that S. 1257 is the wrong means. Despite the best of motivations, the bill is fundamentally flawed on a constitutional level and would only serve to needlessly delay true reform for District residents. Indeed, considerable expense would likely come from an inevitable and likely successful legal challenge — all for a bill that would ultimately achieve only partial representational status. The effort to fashion this as a civil rights measure ignores the fact that it confers only partial representation without any guarantee that it will continue in the future. It is the equivalent of allowing Rosa Parks to move halfway to the front of the bus in the name of progress. District residents deserve full representation and, while this bill would not offer such reform, there are alternatives, including a three-phased proposal that I have advocated in the past. Continue reading “Testimony: D.C. Vote in Congress (Senate Judiciary Committee)” →

Congress, Politics

Get Congress Out of the Page Business

October 4, 2006 New York Times

MEMBERS of Congress have been falling over themselves this week to assign blame to other people in the aftermath of the resignation of their colleague Mark Foley, the Florida Republican who has acknowledged sending improper e-mail messages to a former House page. The fact is, however, that they are all to blame to different degrees for this latest page scandal.

I served as a House leadership page in 1977 and 1978 under the sponsorship of Sidney Yates, an Illinois Democrat. This was during the dark ages when male pages were simply given a salary and told to find their own housing. (Female pages were housed at the Y.W.C.A.) It goes without saying that pages grew up fast and had to learn self-discipline and survival skills.

During my tenure, I was taken by other pages to the home of a man who lived on Capitol Hill — not a member of Congress — and who would give male pages alcohol and drugs. He was clearly a pedophile. On weekends, he brought boys into the woods to drink, shoot guns and pose for semi-nude pictures for his ”collection.” I knew enough to leave, but, given the extent of his ”collection,” some clearly did not.

It later became obvious, however, that some of the greatest dangers lurked inside, not outside, the halls of Congress. In 1983, two members were censured for having had sexual relationships with House pages. Dan Crane of Illinois was defeated after he said he had sex with a 17-year-old female page in 1980. Gerry Studds of Massachusetts refused to apologize for a 1973 relationship with a 17-year-old male page, saying that the page was above the age of consent. Mr. Studds was elected five more times.

Like the rest of society, Congress has always had sexual deviants and sexual predators who cultivated images of themselves as churchgoers with family values. Mr. Foley was a co-chairman of the House Caucus of Missing and Exploited Children and an author of various bills about abuse of children. For a member with dark predilections, the presence of trusting and vulnerable pages can be an irresistible temptation.

There are aspects of the representative-page relationship that can unfortunately provide ample opportunities for sexual predators. Pedophiles often assume fatherly roles, reassuring pages living far from their parents. The subordinate position of pages also fulfills power fantasies for some pedophiles.

What is at risk is something truly unique. Since the 1820’s, pages have been an official part of Congress, but there were probably pages even in the first Congress, in the 1790’s. For these young men and women, being a page is an experience that will resonate with them for the rest of their lives. (It is therefore particularly galling that, as in 1983, the misconduct of members often leads to calls to abolish the page service — removing the temptations rather than deterring the abuses.)

As a 16-year-old page, I served such iconic figures as Barbara Jordan and heard addresses from leaders like Hubert Humphrey. I still remember the first time I had to hoist the flag on top of the House of Representatives, walking over a narrow plank of rotted wood that was probably 200 years old. I stood on top of the windy Capitol holding that flag and having my own ”Titanic” moment: I felt as if there was no limit to this country or its promise. When I sat to catch my breath I noticed a spot near the door where pages had recorded their names for over a century. You could feel a connection that ran for generations, as if pages were part of the Capitol itself.

Pages also serve as reminders to members of Congress of the idealism that first drove them to choose public service. In the hallways of the Capitol they seem like antidotes to the Abramoffs, the Cunninghams and the general stifling cynicism that has taken over government. That is why many of us are so angry with the failure, yet again, to protect our pages.

The 1980’s scandals led to some important reforms on housing and schooling (including the creation of a page dormitory). These reforms, however, fell short of the needed changes.

The most glaring problem is that the House Page Board, which supervises the pages, is made up mostly of members of Congress (the Senate Page Board is composed of only two Senate officials, with no members). The representatives on the board have built-in conflicts of interests in moving against members accused of harassment. Political and social alliances complicate the process and many members would prefer to remain in blissful ignorance when rumors arise. Indeed, some (including the House speaker, Dennis Hastert) are accused of having known about Mr. Foley’s inappropriate messages months ago but allowing the matter to be addressed only informally and without serious action.

The solution is simple: the alumni of the page program need to protect their own ranks. Some of Washington’s most powerful figures in politics, media, business and the law are former pages. They are neither intimidated by members of Congress nor hesitant to drag a member to account. They are protective of pages and have the clout to match their concern.

Congress should create a Congressional Page Board composed of former pages. This board would have the ability to report infractions directly to the respective Ethics Committees for each house, which would be required to investigate and act upon any complaint submitted by the board.

One of the benefits of such a board is that former pages are likely to have a greater connection and rapport with current pages. Indeed, what is unusual about this case is that the page actually came forward — reports suggest that other pages had known of Mr. Foley’s conduct for years. They were wrong in not coming forward with the information. But that’s a difficult thing to do. It might have been easier if the voice on the other end of a telephone line was a former page.

If members are truly outraged, they will help us protect pages from predators in their own ranks. Power and pedophilia are by no means inevitable allies, but it is ridiculous and reckless to ignore their historical relationship. As former pages, we are happy to leave the Foleys, Cranes and Studdses to Congress. But Congress should leave the welfare of the pages to us.

Columns, Congress, Constitutional Law, Justice, Supreme Court

Reforming the Judicial Confirmation System

May 19, 2004 Wednesday

HEADLINE: Confirmation Process Needs a New Rule: Play Nice at Recess

BODY:
Recently, leading Democrats have accused President Bush of not playing nice. After Senate Democrats blocked confirmation of a number of judicial nominees, Bush sidestepped the Senate and gave them temporary “recess appointments.” Then, Democrats embargoed all judicial confirmations until the president agrees not to use his recess appointment authority. Yesterday the two sides reached an interim deal to break the deadlock (see story, p. 3). But more is needed.

The fight has its roots in a mistake that dates back to the drafting of the Constitution more than two centuries ago. Indeed, this mistake is one of the few oversights by framers, who were ordinarily smart about details. While the framers gave the Senate the sole authority to confirm judicial nominations, they also gave the president the authority to temporarily appoint officials without Senate confirmation when Congress was not in session. Continue reading “Reforming the Judicial Confirmation System” →

Columns, Congress, Constitutional Law, Politics

Ronald Reagan and the Dangers of a Cult of Personality

June 10, 2004 Thursday

HEADLINE: Replacing Giants On Currency Is A Bill Too Far

BODY:
As the nation mourns the death of Ronald Reagan, there are some who are intent on marking his passing with more than heartfelt tributes and tears. A massive memorial on the Mall and other projects are currently being proposed to immortalize this conservative icon. However, two proposals appear to be moving quickly through the halls of Congress: One would replace Alexander Hamilton on the $10 bill, while the other would replace Franklin Delano Roosevelt on the dime.

The move to bump Hamilton and Roosevelt raises serious historical and symbolic questions – but few of these questions are likely to be discussed, let alone answered, during this period of mourning. While many Americans fiercely opposed Reagan and his policies, most of these critics have remained silent in deference to their fellow citizens who embraced Reagan as a political revolutionary.

The problem is that tossing great leaders such as Hamilton and Roosevelt off our currency risks turning a “celebration of life” into a cult of personality. There is no question that Ronald Reagan deserves memorials and praise. However, since he left office, the appetite for memorials among his disciples has been insatiable. Continue reading “Ronald Reagan and the Dangers of a Cult of Personality” →

Columns, Congress, Politics

Tom DeLay and Congressional Ethics

November 22, 2004 Monday
HEADLINE: In Congress, Justice DeLayed Is Justice Denied

Power and principle have rarely coexisted well in Washington. However, even in a city that long ago lost the ability to blush, last week’s vote by Republican House Members on Majority Leader Tom DeLay’s (R-Texas) possible indictment left many breathless.

The GOP did away with an ethics rule that would have forced him to resign from his post if he, as some expect, is indicted in Texas for criminal acts related to fundraising. It is only the latest act of collusion in support of DeLay, who has become the Teflon Don of Beltway politics.

It was only a few weeks ago that the Committee on Standards of Official Conduct reprimanded DeLay for violating ethics rules in a different controversy. It was vintage Beltway theater. The reprimand was crafted to avoid any real punishment of DeLay, who immediately claimed a curious victory and thanked the committee for offering “guidance” on such issues.

Now, DeLay faces the possibility of an actual criminal charge in Texas. Close associates of DeLay have been indicted in Austin for illegal solicitations and campaign contributions. DeLay wanted the GOPto take control of the Texas House of Representatives before redistricting. However, it is illegal to solicit or spend corporate funds on political campaigns in Texas. Continue reading “Tom DeLay and Congressional Ethics” →

Columns, Congress, Constitutional Law, Justice, Politics

The Bush Administration’s Unchecked Authority

June 19, 2006 Monday

HEADLINE: Constitutional Swag, Congressional Privilege

We are in the midst of a crisis with few parallels in our nation’s history, but you would never know it by speaking with most Members of Congress. As Congress blissfully occupies itself with bread-and-circus politics such as flag-burning and same-sex marriage amendments, existing constitutional principles are being eviscerated.

Over the past six years, the Bush administration has made unprecedented intrusions into Congressional authority without any significant response, or even inquiry, by Congress.

The framers anticipated that each branch jealously would covet each other’s power. Accordingly, the Separation of Powers doctrine is based on the Madisonian principle that “ambition must be made to counteract ambition.” Continue reading “The Bush Administration’s Unchecked Authority” →

Columns, Congress, Justice, Politics

The Page Protection Act: The Path to Saving A Historic Program

October 5, 2006 Thursday

Immortalized in movies such as “Mr. Smith Goes to Washington,” Congressional pages always have represented the youthful idealism of the country. Perhaps it is that very image that attracts people like former Rep. Mark Foley (R-Fla.), who resigned after admitting he sent improper e-mails to a House page.

For those of us who served as pages, our greatest concern is not with Members like Foley (who likely will be brought to account), but with the future of this unique institution. Whatever we learn about these allegations, one thing should be clear: The system failed, yet again, to protect pages from the Members they serve. It is time to pass a Page Protection Act that creates an independent body to oversee, maintain and protect the page service. Continue reading “The Page Protection Act: The Path to Saving A Historic Program” →

Columns, Congress, Constitutional Law, Politics

Too Clever by Hafl: The D.C. Vote in Congress

January 25, 2007 Thursday

One of the most anticipated pieces of holdover legislation for the 110th Congress is the D.C. Fair and Equal House Voting Rights Act, giving the District of Columbia a single vote in the House of Representatives and balancing that Democratic vote with a fourth district for Utah. While heralded as a historic and long-overdue reform for the District’s non-voting citizens, the legislation is a constitutional and practical nightmare. It is an example of being too clever by half – trying to do the right thing without doing it in the right way. Continue reading “Too Clever by Hafl: The D.C. Vote in Congress” →

Columns, Congress, Constitutional Law, Politics

The Return of the Equal Rights Amendment

April 16, 2007 Monday

HEADLINE: The Revival of The Equal Rights Amendment

For decades, the dream of cryonics has been to freeze clinically dead people for long periods so that they can be brought back to life in the future when a cure for their fatal ailment has been found. This month, the first successful cryonic experiment occurred in Congress with the sudden resuscitation of the long-dead Equal Rights Amendment, now called the Women’s Equality Amendment. Continue reading “The Return of the Equal Rights Amendment” →

Columns, Congress, Constitutional Law, Justice

The Case for the Impeachment of Alberto Gonzales

Published August 2007 Roll Call

HEADLINE: The Case for the Impeachment of Alberto Gonzales

There is much about the current controversy over Attorney General Alberto Gonzales that would have perplexed the framers. Perhaps the most surprising would have been the relative passivity of Congress in the face of allegations of crimes by the nation’s chief law enforcement officer.

Long before the advent of special prosecutors and blue ribbon commissions, the framers created a system designed precisely for this type of situation: impeachment.

Article II, Section 4 of the Constitution expressly allows for the impeachment and conviction of any “civil officers” guilty of “high Crimes and Misdemeanors.” It is not necessary that such offenses be actual crimes for impeachment. James Madison described many acts of negligence that would be grounds for impeachment, including notably the “wanton removal of meritorious officers.”

The only Cabinet officer to be impeached was William Belknap, a former secretary of War who was charged with accepting bribes for contracts associated with the Indian Territory. The 1878 impeachment made it all the way to the Senate despite the fact that Belknap was no longer in office. While only three Senators believed him to be innocent, he narrowly escaped conviction on jurisdictional grounds by resigning from office. Belknap is buried at Arlington National Cemetery, ultimately succumbing to a “stroke of apoplexy” not long after his impeachment.

The impeachment of Cabinet officers has proved largely unnecessary because most officers gracefully have withdrawn or, when necessary, presidents have encouraged them to attend to “family matters.”

Not only has Congress given ample time and opportunity for Gonzales to step aside, it has withheld action despite highly compelling allegations of criminal conduct. On its face, the current record likely would satisfy most grand juries as sufficient to indict on at least some of the allegations. Indeed, many of Gonzales’ defenses to allegations of false statements routinely are raised by defendants in past cases – and uniformly rejected by his own department in cases such as the Scooter Libby prosecution.

This is not to say that Gonzales does not have valid defenses to make. The point of the House investigation is to determine whether impeachment is warranted, and there is ample record to justify such an inquiry. Consider just a few of the more compelling potential articles for impeachment:

Article One: Violations of Federal Criminal Provisions on Warrantless Surveillance. The National Security Agency program implemented by the Bush administration clearly and unambiguously violated the Fourth Amendment as well as federal law, which defines such warrantless surveillance as a federal crime. Yet this article could prove embarrassing to some Democratic Members who secretly were informed of the unlawful program. Moreover, the person most responsible for these crimes is the president and Democratic leaders repeatedly have stated that they will not consider any impeachment of President Bush.

Article Two: Obstruction and Misleading of Congress in the Course of Its Oversight Responsibilities. Gonzales has demonstrated a clear record of misleading Congress in its effort to investigate violations of the Constitution and international law. Examples of such conduct are numerous. For example, in his January 2005 confirmation hearing, Gonzales was asked by Sen. Russ Feingold (D-Wis.) whether the president could lawfully “authorize warrantless searches of Americans’ homes and wiretaps of their conversations.” Gonzales publicly dismissed the suggestion as merely a “hypothetical situation” when he knew the president had done precisely that for more than three years. Likewise, in April 2005, Gonzales told Congress that “there has not been one verified case of civil liberties abuse” under the USA PATRIOT Act. It was disclosed later that Gonzales had received various reports of precisely such violations, including one shortly before the hearing.

Article Three: Perjury – January 2005. The January 2005 statement constitutes an actionable allegation of perjury given the context. We have learned since then that Gonzales was deeply involved in the program as well as efforts to overcome internal critics of the program from Acting Attorney General James Comey to FBI Director Robert Mueller.

Article Four: Perjury – April 2005. Gonzales’ statement in April 2005 also is a valid basis for articles of impeachment. At the time of the statement, Gonzales was aware that many Americans opposed the act as relying too heavily on self-monitoring and self-control by the Justice Department. Finally, he was presumably aware that violations were found by internal monitors since he received various reports of those violations and those reports were directly relevant to his testimony.

Article Five: Perjury – February 2006. In a February 2006 hearing, Gonzales testified that “there has not been any serious disagreement about the [program].” In fact, we have learned that there was considerable opposition to the program that prompted the extraordinary confrontation at the sickbed of former Attorney General John Ashcroft. Indeed, it is now known that a March 10, 2004, meeting with Congressional leaders was called to inform them of such opposition and the possible need for legislation.

Article Six: Perjury – March-April 2007. On March 13, Gonzales publicly stated that he “was not involved in seeing any memos, was not involved in any discussions about what was going on” with regard to the firing of eight U.S. attorneys. Then, on April 19, he repeated this position to Congress and explained that “I haven’t talked to witnesses because … I haven’t wanted to interfere with this investigation.” These statements appear to be patently false. One of the central figures in the scandal, former Gonzales aide Monica Goodling, testified that Gonzales did question her about her recollection of the facts. Notably, she had gone to Gonzales to ask for a favor: to transfer out the office. Gonzales used this time, when Goodling most needed his intervention, to ask her about her recollection of events – questioning that Goodling stated made her feel “uncomfortable” at the time.

Article Seven: Perjury – July 2007. Most recently, Gonzales testified that a critical confrontation at Ashcroft’s hospital bed “was not about the terrorist surveillance program that the president confirmed.” He was asked about this incident given his prior statements that there was no serious disagreement over the domestic surveillance program. Gonzales’ statement has been directly contradicted by other testimony, most notably that of FBI Director Mueller.

However painful or costly such proceedings might prove, there are far greater costs in ignoring such conduct. Congress cannot continue to call on others to address this controversy. The framers gave Congress the authority to act in the face of defiant contempt or misconduct by civil officers. It should now act as the framers envisioned: fairly but firmly with the initiation of impeachment proceedings.

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

Congress, Justice, Politics

Rep. William Jefferson and the Presumption of Innocence

June 7, 2007 Thursday
SECTION: GUEST OBSERVER

LENGTH: 1188 words

HEADLINE: Jefferson Deserves Presumption Of Innocence

BYLINE: Jonathan Turley

BODY:

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.

Congress, Justice, Politics

Rep. William Jefferson and the Presumption of Innocence

June 7, 2007 Thursday
SECTION: GUEST OBSERVER

LENGTH: 1188 words

HEADLINE: Jefferson Deserves Presumption Of Innocence

BYLINE: Jonathan Turley

BODY:

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.