Burris Ethics: Tough Language, No Penalty

The language used by the Senate ethics committee in announcing that it was closing the investigation into Illinois Democrat Roland Burris is not the kind of stuff I'd ever want to wind up in my obituary.

Yet, Burris — whose controversial appointment by the disgraced Rod Blagojevich is what initiated the investigation — seemed relieved by the committee's conclusion. He was "pleased" that the inquiry had come to a close, and he thanked the committee for "their fair and thorough review of this matter." Indeed, many media headlines talked of Burris being "cleared" or "absolved" by the ethics folks.

Here's an excerpt from the committee's letter to Burris. This is what they call good news these days?

You should have known that you were providing incorrect, inconsistent, misleading, or incomplete information to the public, the Senate, and those conducting legitimate inquiries into your appointment to the Senate. The Committee also found that your November 13, 2008 phone call with Robert Blagojevich [brother of the then-governor] was inappropriate. Although some of these events happened before you were sworn in as a U.S. Senator, they were inextricably linked to your appointment and therefore fall within the jurisdiction of this Committee.

While the Committee did not find that the evidence before it supported any actionable violations of law, Senators must meet a much higher standard of conduct.

I was talking about this on Friday with Peter Overby, NPR's Money, Power & Influence correspondent, who was similiarly intrigued by the committee's action, or lack of same. Here's Peter's take:

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Now that the Senate Select Committee on Ethics has given Burris a "public letter of qualified admonition," we can pause for a moment and contemplate what that means.

Well, more than a moment. Maybe an hour. Okay, most of an afternoon. That's what it took me. (And if you need a refresher on then-Gov. Rod Blagojevich's eBay-like auction of President Obama's Senate seat, and Burris's dalliance with the Blagojevich family, see Ken's post from February here.)

The Senate panel has almost limitless options for verdicts. Choices include fine, reprimand, rebuke, censure, denouncement, condemnation, and expulsion — all of them stronger than admonition.

The committee said it didn't go tougher on Burris for many reasons; most prominently, that a county prosecutor in Illinois decided the case wasn't strong enough to take to a grand jury. (And as every criminal lawyer in America will tell you, a good prosecutor can get a grand jury to indict a ham sandwich. It's always ham.) The prosecutor's decision is the reason it's a "qualified admonition." Like then-Sen. Pete Domenici (R-N.M.), who got a public letter of qualified admonition in April 2008, Burris was judged to have violated Senate rules but no more than that.

This suggests that an indictment in the judicial branch might be a threshold for serious ethics enforcement in the legislative branch. But that's not so. The committee sometimes drops the hammer hardest on senators who've never been indicted, let alone convicted. For instance, in 1995 it recommended expulsion for Sen. Bob Packwood (R-Ore.), accused of sexually harrassing women on his staff and cutting a backroom deal to get his wife a job. He was never indicted (but never expelled either; he resigned first).

Still, the committee didn't want Burris to walk away either. It could have sent a private letter of admonition, telling him but nobody else. It didn't do that, but again, it chose the lightest verdict on the books. (At least it's the lightest until Senate ethics adds yet another verdict, which it's free to do anytime.)

Here's one more way to gauge it. Ethics probes look at the damage to the Senate's reputation. Packwood, for instance, "brought discredit and dishonor upon the Senate" and engaged in "conduct unbecoming a senator." On the other hand, here, the committee says Burris's actions and statements "reflected unfavorably on the Senate."

Confusing? Yes. Deliberately so? Well, not so much as the case of Sen. Herman Talmadge (D-Ga.). In 1979, he was found to have committed financial improprieties, and he became the first senator to be denounced. The committee said it devised that verdict expressly so Talmadge could avoid comparisons with misbehaving senators of years past.

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