Thursday, September 20, 2007

Expel DeLuca For Failing To Report A Bribe

Attorney Sandra Norman-Eady, testifying before a special legislative committee, said there were no clear rules or language in the cases she had examined that dictate how the committee, poised to decide whether Sen. Lou DeLuca should be expelled from the chamber, should decide the issue. "There's nothing definitive,” Norman-Eady said, “that says it has to be a felony conviction for expulsion.”

Having consulted relevant passages from James Madison in the Federalist Papers, Sen. Anthony Guglielmo told the committee that the constitutional founders set a pretty high standard for expulsion; they “were concerned about overturning the elections of duly elected officials."

Both Norman-Eady and Guglielmo are right. Very likely, legislators may expel members for cause – any cause. On the other hand, overturning elections is a serious business, and so the cause ought to be denial proof. Expulsion is particularly chancy when legislatures are dominated by a single party.

Precedence is established as cases come before legislatures and are determined. In its 400 year history, Connecticut has never expelled a member from its General Assembly. Therefore, the legislative committee now poised to decide whether DeLuca should be expelled has no precedent to guide it. Indeed, the legislature will shape the precedent in its decision. It will be providing to future legislatures a template the General Assembly may follow whenever it considers expelling members.

What would a denial-proof cause in the case under consideration look like?

Court convictions are denial proof. That is why many legislatures expel members only after they have been convicted of breaking laws.

While many charges have been made against DeLuca – especially by ethicists in the media – the senator has been convicted only of a misdemeanor, and that misdemeanor was non-prosecutable because the statute of limitation on the charge had run out. Some commentators have speculated that federal and state prosecutors chose not to prosecute DeLuca on more serious offenses because they wished to secure his aid in frying bigger fish.

When DeLuca was offered a bribe by an FBI agent disguised as a confederate of James Galante -- a Connecticut “trash magnate,” as he was called by one newspaper, who had been paying “tribute” to an organized crime boss under investigation by the FBI-- he refused the bribe but then did not report the bribe attempt to federal authorities. That is a felony and a prosecutable offense. Moreover, DeLuca’s failure to report the bride passes the deniability test, since recorded conversations between DeLuca and an FBI plant posing as a Galante operative demonstrate that a bribe was offered, refused and not reported to the relevant authorities.

Any decision to expel a member from the General Assembly should not be dependent on felony convictions. The legislature should itself determine causes for dismissal, and these causes should not depend upon actions taken by other agencies. The legislature should make it very clear that the General Assembly alone is authorized to determine when a member has so befouled his office that expulsion is unavoidable. FBI agents and prosecutors are not elected by the citizens of Connecticut to represent them; legislators are.

It is precisely because the legislature as a whole has been chosen by the state as a whole that it – and it alone -- should be the final authority in determining conditions of service. The legislature has both the power and the responsibility to set such terms.

Its power should not be diminished through precedence; in other words, the legislature’s ability to determine a cause for expulsion should not in the future be restricted because the legislature had in the past determined a specific cause for expulsion. The legislature must insist that it can expel members – for cause.

On the other hand, prudence dictates that the cause should not be a frivolous one. It is, and ought to be, a fearful thing to fall into the hands of an angry electorate.

Lou DeLuca has disgraced his office. He should be expelled.

Consulting prudence, rather than other lawyers, it may seem obvious to detached observers that DeLuca should be expelled for having neglected to report a bribe. There is no question that he was offered a bribe; there is no question that he did not report the offer. Detached observers may properly reason that DeLuca was not prosecuted on the charge, a felony, because prosecutors were anxious to secure his co-operation to support other cases that were more important to them.

No doubt, federal and state prosecutors, guided by necessity, failed to prosecute felonious activity. The legislature should not condone that activity by its inaction in a matter that concerns it. For this reason, the legislature should craft a rule making expulsion mandatory for members who have failed to report bribe attempts even if the threat of expulsion induces DeLuca to resign from office. Expulsion for having neglected to report a bribe may, it is hoped, have a salutary effect on other Connecticut officeholders.
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