Traficant to Seek Day in High Court

Posted May 19, 2004 at 7:02pm

Former Rep. Jim Traficant’s criminal conviction on corruption charges was upheld Wednesday by a federal appeals court in a ruling that affirmed the power of Congress to independently discipline wayward lawmakers.

The three-judge panel of the 6th Circuit Court of Appeals in Cincinnati unanimously and soundly rejected both prongs of Traficant’s long-shot appeal, meaning that the former nine-term lawmaker is more likely than ever to remain behind bars until at least August 2009.

Hope is not completely abandoned, though. One of Traficant’s attorneys said he plans to take the case to the highest court in the land.

“We are disappointed with the decision of the 6th Circuit, and have not yet had the opportunity to discuss it with Mr. Traficant,” said Lloyd Pierre-Louis. “However, we do plan to pursue an appeal of the decision to the U.S. Supreme Court.”

Traficant is currently serving out his prison term at a medium-security facility in upstate New York after being transferred from a minimum security prison, apparently because of disciplinary problems.

The House voted overwhelmingly to expel Traficant following his conviction in 2002 on 10 counts of bribery, racketeering, fraud and tax evasion. And it was that rarely employed power of the House that Traficant used to challenge his eight-year prison sentence, arguing that the expulsion proceedings and his judicial sentencing placed him in jeopardy twice, which is forbidden by the Constitution. Traficant contended that the Double Jeopardy Clause allowed either Congress or the executive branch — but not both — to bring an action against him.

The one-time populist lawmaker who isolated himself from his own Democratic Party during his final years also contended that the power of the House to discipline its own Members knew no bounds and that the House could imprison lawmakers on its own authority. He cited a rarely invoked, century-old passage from a Supreme Court decision to justify his claim.

But Traficant’s argument doesn’t work under a constitutional system in which each of the three branches of government are equal and independent, ruled Judge R. Guy Cole Jr., a 1996 Clinton appointee. More importantly, it would give wrongdoers in Congress a free pass.

“Traficant’s theory would shield would-be felons — who just so happen to sit in Congress — from criminal prosecution by the Department of Justice. Congress’ slap on the wrist, or even its mere contemplation of a slap on the wrist, would forever tie the Executive Branch’s hands,” Cole wrote.

“Conversely, under Traficant’s argument, a representative’s criminal prosecution by the Executive Branch would immunize that representative from discipline imposed by Congress. If the Double Jeopardy Clause enveloped this type of internal congressional housekeeping, the prior prosecution of a congressman might immunize him from expulsion, or even reprimand. Congress could be powerless to discipline the subset of representatives it would likely consider to be most deserving of reprimand or removal: those convicted of federal crimes.”

Such a result, Cole noted, would “flout … common sense.”

“Because it would thwart the constitutional separation of powers if Congress could shield its members from criminal prosecution by the Executive Branch, we cannot read the Double Jeopardy Clause to include Congress’s disciplining its own members,” the court ruled.

But Pierre-Louis said that Traficant “did not argue that the House was the sole branch that is constitutionally empowered to prosecute him. Rather, he argued that a Member, as any other citizen, may only be subjected to punishment for the same crime only once under the Double Jeopardy Clause of the Fifth Amendment. We respectfully disagree that the Fifth Amendment protection distinguishes between different branches of the same sovereign, i.e. the U.S. Government.”

Cole also skeptically dismissed Traficant’s assertion that the House could imprison its own membership, calling that supposed power “uncertain” at best.

“The Supreme Court has never squarely held that Congress may imprison its own members. Even assuming that it can, Congress has not done so even once, dating back to the year 1787. A concern so speculative — perhaps illusory — cannot redefine the relationship among the three branches of government,” Cole wrote.

But even assuming that Traficant had a viable claim of double jeopardy, the court ruled that he failed to properly make the claim. Noting that the lawmaker was first placed in jeopardy with the swearing in of the trial jury in February 2002 and that the House ethics committee did not begin proceedings until after his April conviction, Traficant should have challenged the Congressional procedure. But he did not, forcing the ethics panel to conduct televised hearings that provided a forum for Traficant to, however rambling, rebut the charges.

Instead, Traficant wrongly contended that his trial conviction and sentencing were two distinct events, with the House expulsion coming in between. But the court said his trial proceedings and sentencing were just one event in terms of a jeopardy claim.

“Thus, although the congressional proceedings predated certain phases of the judicial proceedings, Traficant’s sentencing did not result in a ‘new and separate jeopardy.’ Ultimately, because the Double Jeopardy Clause aims at only the second jeopardy (and Traficant has not asked us for an injunction ordering his reinstatement to a seat in the House of Representatives), his prosecution and sentencing in the courts did not violate the Constitution,” the court ruled.

In a second line of attack, Traficant said the Cleveland jury that convicted him did not fairly represent the population of his home base of political supporters in Youngstown, Ohio. But the court noted that Traficant, who acted as his own attorney despite the lack of a law degree, failed to make such a claim during the lengthy criminal proceedings despite having ample opportunity to do so.

Pierre-Louis also disputed this section of the ruling, saying that in a criminal trial the defendant may raise a constitutional challenge at any time during the proceedings.