Monday, January 5, 2009

Taint and the Law

Senator Harry Reid has an exalted sense of importance when it comes to the question of filling Illinois's Senate seats:

Senate Majority Leader Harry Reid says lawmakers have the legal authority to block Burris' appointment ... Reid said Sunday that Blagojevich's appointment is "tainted," considering the charges against the governor.

"Blagojevich obviously is a corrupt individual. I think that's pretty clear. And the reason that he's done what he's done is to divert attention from the arrest that was just made of him and the indictments that will be coming in a few days according to the U.S. attorney in Illinois," Reid said on NBC's "Meet the Press."
Harry Reid has a curious idea of what's obvious; under our legal system, we use trials featuring judges and juries and lawyers, not press conferences and leaks and Sunday talk shows, to assess matters of fact and determine guilt or innocence.

Until and unless Rod Blagojevich is convicted of a crime, he is innocent. And until and unless Rod Blagojevich resigns or is forced, by legal means, to leave office, he is the governor of Illinois. Under Illinois law, the governor -- not Senator Harry Reid of Nevada, not the Illinois Secretary of State, and not even 10,000 panting beltway pundits -- fills Senate vacancies.

Likewise, if (gawd forbid) a natural disaster should strike somewhere in the state of Illinois, governor Rod Blagojevich will be the one to declare a state of emergency and, if necessary, dispatch National Guard troops. If the legislature sends a bill for the governor's signature, no matter how grave or trivial the subject matter, the signature will need to be that of Rod Blagojevich. For all his taintedness, he remains the governor of Illinois, and holds all the powers of that office.

Nevada Senator Harry Reid has a thin reed of a legal argument:
Senate leaders questioning the appointment cite Article 1, Section 5 of the U.S. Constitution, which states, "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members."
At best, the proposed exercise of this power -- refusing to seat Burris because the man who appointed him is "tainted" by what are, to date, mere accusations -- opens the door to protracted legal wrangling.

Suppose a governor is "tainted" because she's a moron who thinks she can see Russia from her porch but can't name two supreme court cases with which she disagrees; or suppose a governor is "tainted" because he starred in a string of violent action movies after a career as a drug-abusing bodybuilder; or, to imagine a closer case, suppose a governor is "tainted" because her political opponents are tossing around accusations, using allies in the press and the attorney general's office to create an air of scandal, and otherwise striving to cobble together an impeachment. Does Senator Harry Reid of Nevada believe his Article 1 powers extend to these cases?

"Taint" has many facets. "Taint" is quite a low standard when you get right down to it. There is actually good reason that "taint" is not legally binding in the USA. Surprisingly enough, the word "taint" does not appear in the Constitution.

I do not think Rod Blagojevich will be found innocent after the case is put to trial. And whatever happens in court, I suspect the Illinois legislature will impeach and remove him. But my thoughts and suspicions on it are not binding, nor should they be -- not even if they're shared by Nevada Senator Harry Reid, every other politician in the United States except Blagojevich himself, and every panting beltway pundit under the sun.

Fuck taint. Follow the law.

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