Q:
I have a question regarding sanctions Sen. Roland Burris (D-Ill.) could face if it turns out he testified falsely about events leading up to his appointment to the Senate. I know the Ethics Committee is now investigating, and I’ve heard that such an investigation could result in Burris being expelled. I fear that would just drag out the whole mess even further, as it would require yet another appointment to replace Burris. Can the Ethics Committee expel Burris for false testimony?

[IMGCAP(1)]A: Before looking at the sanctions, let’s examine the allegations themselves, which concern two sets of statements that Burris made last month to an Illinois House committee that was considering whether to impeach then-Gov. Rod Blagojevich (D).

The first set came during Burris’ actual testimony before the impeachment committee. State Rep. Jim Durkin (R) asked whether Burris had spoken with anyone associated with Blagojevich about his desire for the Senate seat. Durkin threw out a list of names as examples. After consulting with his attorney, Burris replied that he had. Durkin followed up: “Did you speak to anybody who was on the governor’s staff prior to the governor’s arrest or … anybody who is closely related to the governor?” Burris replied that he had spoken to Lon Monk, a lobbyist who had once been Blagojevich’s chief of staff.

However, Burris did not name three other people whom he has now acknowledged he also spoke to about the Senate seat. Durkin had mentioned all three in his list of names. One was Rob Blagojevich, the governor’s brother and primary fundraiser. Burris now says he had three conversations with Blagojevich’s brother during which they discussed not only fundraising for the governor but also Burris’ interest in the Senate seat.

Burris has stressed, however, that there was never any suggestion of pay-to-play between himself and Blagojevich’s brother. As for his incomplete testimony, Burris has explained that the fluid nature of the questions and answers prevented him from fully responding to some of the questions. And, indeed, the transcript does reflect that after Burris discussed his conversation with Monk in response to Durkin’s question, Durkin switched to a different topic.

Even so, a second alleged false statement could give Burris more trouble. It came in an affidavit that Burris submitted to the committee before his testimony. The affidavit stated that, before December 2008, “there was not any contact between myself or any of my representatives with Governor Blagojevich or any of his representatives regarding my appointment to the United States Senate.”

Barring a narrow reading of the terms “representatives” and “my appointment to the United States Senate,” Burris’ recent statements seem to contradict his affidavit and have landed him in hot water. Even members of his own party have called for his resignation. And now, as you point out, the Senate Ethics Committee is investigating.

So, can the Ethics Committee expel him for this? In a word, no. In fact, the committee can’t expel him for anything. But what it can do is recommend that the Senate itself expel him. The Senate’s power to expel is granted by the Constitution, which provides that each chamber may “punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.” Some view this authority as being virtually boundless. For example, the Congressional Research Service has stated that the “express grant of authority for the Senate to expel a Senator is, on its face, unlimited — save for the requirement of a two-thirds majority.” If this is right, in theory two-thirds of the Senate could expel a peer if they didn’t like his face.

In practice, however, the Senate has rarely used its authority to expel. As much as Senators may have disliked each others’ faces over the years, no Senator has been expelled since the Civil War. The CRS has reviewed the historical uses of the Senate expulsion power and concluded that it has been “reserved for cases of the most serious misconduct: disloyalty to the government or abuses of one’s official position.” In the Ethics Committee’s four decades of existence, it has recommended expulsion only twice, and in neither case were the allegations at all similar to those Burris faces.

History suggests, therefore, that even if the allegations against Burris were true, he would still have a few arguments on his side. First, expelling him for providing false testimony would be unprecedented. Second, Burris’ alleged misconduct occurred before he was a Senator, and precedent shows that there has been reluctance to expel a Member for such conduct.

Yet, these arguments might only get Burris so far. No two situations are exactly alike, so in some sense pretty much any expulsion would be unprecedented. Moreover, should a vote to expel Burris reach the Senate floor, political factors may weigh more heavily than precedent.

Ultimately, the underlying justification for the Senate’s power to expel is to protect the integrity of the legislative institution. Former Justice Joseph Story wrote in his historic treatise on the Constitution that the Senate could use its expulsion power to address any action “inconsistent with the trust and duty” of a Member. In a statement last week, Senate Majority Whip Dick Durbin (D-Ill.) implied that these issues are at stake here.

Durbin said that when he met with Burris in January, he told Burris that one of the prerequisites for him to be seated in the Senate was that he would have to appear before the Illinois committee considering Blagojevich’s impeachment, and “testify openly, honestly and completely about the nature of his relationship with the former governor, his associates and the circumstances surrounding this appointment.”

Durbin said that it now appears that Burris did not make the full disclosure that was requested. While Durbin has said he would allow the process to run its course, it sounds like there could be at least one vote for expulsion.

C. Simon Davidson is a partner with the law firm McGuireWoods LLP. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.