A Question of Ethics

Does Federal Law Require Stevens to Be Expelled?

November 17, 2008

Q: I need you to settle a debate. I am an Alaska voter and had always presumed that if the trial of Sen. Ted Stevens (R) resulted in a conviction, he would be required to leave the Senate. However, now that he has been convicted, a friend of mine says that I am wrong. He says that if Stevens is re-elected, the Senate would not expel him. Who is right?

A: Unfortunately, I’m not sure that I can settle this debate. While Stevens’ conviction does not disqualify him from serving in the Senate, it is possible that the Senate might expel him anyway, even if he is re-elected. Those who favor expulsion and those who favor Stevens staying both have arguments supporting their position.

As a preliminary matter, there is no law that requires that a Senator who is convicted of a crime to be expelled. Under the Constitution, there are just three qualifications to be a Senator. Article I, Section 3, Clause 3 states that a Senator must be 30 years old, a U.S. citizen for at least nine years and an inhabitant of the state he or she represents. Absent an amendment to the Constitution, these qualifications cannot be changed.

Moreover, under the Constitution, only one thing automatically disqualifies a Senator from continuing to serve. The 14th Amendment provides that no person shall be a Senator if he or she has previously taken an oath to support the Constitution, and then engages in insurrection or gives aid or comfort to the country’s enemies.

Beyond the Constitution, there are no other laws directly addressing the fate of a Senator who is convicted of a crime. In the absence of any such laws, it is left to the discretion of the Senate to determine whether to expel a convicted felon. Article I, Section 5, Clause 2 authorizes Congress to punish its Members for “disorderly behavior.” This is the clause under which the House and Senate created their respective ethics committees. The Senate Ethics Committee investigates potential violations by Members and staffers, and it recommends sanctions where it deems appropriate. The Senate then decides whether to implement the committee’s recommendation. The harshest sanction is expulsion. Under the Constitution, this requires a two-thirds majority vote.

As to Stevens’ case, it is anybody’s guess. Because the Senate has wide discretion in disciplining its Members, political considerations are often at least as important as legal ones, meaning that precedents are not as reliable a guide as in other areas of the law. Moreover, the few times that the Senate has actually expelled a Member all predated the Civil War and were all based on disloyalty to the country.

As for more recent precedents, they are not much help either. The last time a Senator was convicted of a felony was 1980, when Harrison Williams (D-N.J.) was convicted of bribery and conspiracy after accepting bribes in the FBI’s Abscam sting operation. Before taking any action, the Senate allowed Williams’ appeal process to run its course. Ultimately, Williams’ conviction was upheld. The Ethics Committee then recommended expulsion. The Senate scheduled a vote, but Williams resigned before the Senate could decide on his fate. You could argue that the Senate should schedule an expulsion vote for Stevens, just like it did for Williams.

However, there are distinctions between Williams’ and Stevens’ cases. For one, Stevens’ appeal process has not yet run its course. Moreover, Stevens was convicted not of bribery but rather of filing false disclosure forms.

Perhaps most significantly, your friend is right that Stevens’ re-election itself would make expulsion particularly problematic. Williams’ conviction came in the fourth year of a six-year term, meaning that the voters who had elected him were not aware of his conviction when they voted. If Stevens were to prevail, however, this would come after his conviction. Stevens could say that the voters had therefore condoned his conduct. Constitutionally, Alaska should be permitted to elect any qualified candidate it chooses. Any other result, Stevens could argue, would deprive the people of Alaska of their right to elect whomever they see fit. As the 17th Amendment states: “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years.”

On the other hand, some Alaska voters — e.g., absentee voters — may have voted before Stevens was indicted. If Stevens does come out on top, his margin of victory will be very small. Thus, it is possible that votes made prior to Stevens’ conviction could be determinative of the outcome. If that were the case, it would raise some question as to the basis for Stevens’ constitutional argument that the will of the people should not be denied. Yet even then, it would be difficult for the Senate to justify overriding the results of an election on the basis of something about which most Alaska voters presumably knew.

But, we’re getting ahead of ourselves. As you know, votes are still being counted in Alaska, with a final tally expected by Dec. 1. The only way we’ll know for sure what the Senate would do if Stevens were re-elected is if he is.

© Copyright 2008, Roll Call Inc. Reprinted with permission. Widely regarded as the leading publication for Congressional news and information, Roll Call has been the newspaper of Capitol Hill since 1955. For more information, visit www.rollcall.com.


A Question of Ethics

Stevens Verdict Offers Clues on Disclosure Liability

November 4, 2008

by C. Simon Davidson

Q: I am a staffer for a Senator and help prepare his annual financial disclosure report. I have been watching closely the trial of Sen. Ted Stevens (R- Alaska) and am concerned about his conviction for filing false financial disclosure reports. It seems to me that lots of Members file financial disclosure reports that may contain inadvertent errors. Are all such Members now vulnerable to criminal convictions? Or, is there something different about Stevens’ situation?

A: Given your role in assisting with financial disclosure reports, it is certainly understandable that you are troubled by Stevens’ conviction. The good news is that, while Members should certainly make every effort to ensure the accuracy of their disclosure reports, not every error will expose them to criminal liability. Indeed, indictments based on false reports are extremely rare. The bad news, however, is that Stevens’ case shows that it is at least possible for errors to lead to a conviction. While the line between innocent errors and criminal ones is not always clear, Stevens’ case does offer some clues.

As you probably know, the Ethics in Government Act of 1978 requires all Members to file annual financial disclosure reports. The reports contain information regarding Members’ assets, liabilities, income, gifts and other financial matters. Next to the signature block, the report states: “Any individual who knowingly and willfully falsifies … this report may be subject to civil and criminal sanctions.” The report then cites 18 U.S.C. 1001 — the federal statute that the jury said Stevens violated.

Specifically, Stevens’ conviction was based on his statements that he had received no gifts when in fact he had benefited from home improvements, an automobile exchange and household goods that the government alleged totaled more than $250,000 in value. Prior to the jury’s verdict, the judge instructed the jury on what the government had to prove in order for the jury to find Stevens guilty. Typically, jury instructions like these are based on legal principles that are established by statutes, court rules and prior cases. While the Stevens jury’s instructions could be subject to appeal, even as written they appear to rule out criminal liability for certain types of inadvertent or insignificant errors.

For example, the judge’s instruction that Stevens could be found guilty only if the government proved that he acted “knowingly and willfully” suggests that inadvertent errors are not criminal. Both of these terms are significant. Let’s start with “knowingly.” A person acts knowingly, the judge said, if he acts “consciously and with awareness and comprehension and not because of ignorance, mistake, misunderstanding or other similar reason.” In Stevens’ case, the government had to prove beyond a reasonable doubt that when Stevens filed his disclosure reports, he knew that they contained a false statement. While the jury presumably concluded that Stevens had such knowledge, the judge’s instructions suggest that Members who unknowingly make errors would not be guilty of Stevens’ crime. More to the point, the instructions mean that a Member should not be convicted for making a false statement out of mere “ignorance, mistake or misunderstanding.”

As for “willfully,” the judge said it means “voluntarily and intentionally, with knowledge that one’s conduct is unlawful, and with the specific intent to do something that the law forbids.” Again, the jury’s guilty verdict means that it presumably concluded that Stevens acted willfully. However, Members who make inadvertent errors without the specific intent to do something illegal would not meet this standard.

A second standard on which the judge instructed the jury appears to filter out financial disclosure report errors that are insignificant. That standard is materiality. The judge told the jury that the government had to prove that the false statements in Stevens’ reports were material to the Senate Ethics Committee. The judge said: “A fact is material if it has a natural tendency to influence, or was capable of influencing, the decision of the Senate Select Committee on Ethics in making a particular determination.”

The judge did not specify what determination Stevens’ false statement might have influenced. Nonetheless, from court filings, it appears the government’s position was that what made Stevens’ statements material was the likelihood that the Senate Ethics Committee would have conducted an investigation had it known the truth about the gifts that Stevens failed to disclose. This was because the value of the benefits that Stevens failed to disclose far exceeded the gift limits established by the Senate.

Again, the jury presumably concluded that Stevens’ false statements were material to the Senate Ethics Committee. Nonetheless, false statements that do not meet this standard should not be the basis for a criminal conviction. Thus, Members who make insignificant errors that do not have a natural tendency to influence and are not capable of influencing a decision of the Ethics Committee presumably could not be subject to criminal liability. None of this is to suggest that Members need not worry about inadvertent or insignificant errors on their reports. There are several reasons to guard against such errors. For one, even if such errors should not result in criminal liability, this is no guarantee that prosecutors would not investigate the errors. Government investigations in and of themselves are something to be avoided. Second, some errors that are not criminal might still violate Senate ethics rules and therefore could lead to investigations by the Ethics Committee, or even sanctions.

So, you may take heart that errors on Members’ reports rarely result in criminal liability. But, don’t let that be reason for your Senator to be any less diligent about the accuracy of his reports. The best way to avoid trouble is to have no errors at all.

© Copyright 2008, Roll Call Inc. Reprinted with permission. Widely regarded as the leading publication for Congressional news and information, Roll Call has been the newspaper of Capitol Hill since 1955. For more information, visit www.rollcall.com.