Here is my proposal for a principled resolution of the Stevens matter.
1. The first question that should be addressed is whether Stevens’s underlying conduct, independent of the fact of his conviction, warrants expulsion. I suspect that the Senate’s answer to this question would be no. In essence, the case against Stevens was that he received benefits which he knew or should have known were gifts, and that he failed to report them. The Senate would most likely not see this as something that should be treated as a criminal matter, and certainly not the type of corruption that would merit the ultimate sanction of expulsion.
2. If the answer to the first question is no, what role should the fact of Stevens’s conviction play in the Senate’s deliberations? If the underlying conduct does not warrant expulsion, it would seem that the jury’s verdict, standing alone, would not change this conclusion. Therefore, the Senate should not expel Stevens simply for being a “convicted felon.”
3. If the answer to the first question is yes, the Senate must then consider what weight to give to the fact of Stevens’s re-election. While I do not believe that his re-election deprives the Senate of the power to expel, constitutional considerations, supported by longstanding precedent and practice in both Houses, suggests that this power must be used with extreme caution in cases where the electorate has acted with knowledge of the misconduct. The Senate must therefore decide whether Stevens’s conduct was so egregious as to permit it to override the will of the voters. If the answer is yes, the Senate may proceed to immediate expulsion. For reasons indicated earlier, however, the answer in all likelihood would be no.
(It has been suggested that some voters who supported Stevens did not do so because they wanted him to be in office, but because they wanted to keep the seat in Republican control. While this may or may not be true, I don’t think it should play a role in the Senate’s decision. Constituents vote for all kinds of reasons, and the Senate should not be in the business of attempting to discern the motives of groups of voters in particular elections).
4. If the Senate decides that immediate expulsion is not warranted (either because it is not justified by the underlying conduct or because of the need to defer to the will of the voters), it still must decide what to do in the event that Stevens is required to report to prison. Because a Senator cannot perform his legislative and representational duties while in prison, the Senate would be justified in expelling him under those circumstances. On the other hand, one might argue that if the prison sentence were very short, or if Stevens had not exhausted his appeals, the Senate should continue to defer expulsion.
5. Even if Stevens receives a substantial prison sentence and his appeals are rejected, there is one additional issue that the Senate should consider before voting to expel. Because the Constitution places the decision on whether to expel a Member in the Congress, not in the judicial branch, the Senate should not simply act as a rubber stamp on the decision made by the jury and court.
Instead, the Senate should consider whether Stevens’s conviction was consistent with the rights and privileges of the Senate. This is a different question than whether the Senate would have reached the same result as the jury on the evidence presented at trial, or whether there was some procedural error in the trial. Instead, the question should be whether the prosecution or trial violated the separation of powers or the Senate’s autonomy by, for example, relying on evidence protected by the Speech or Debate Clause or improperly construing the Senate’s rules. The Senate might also consider the issue of prosecutorial misconduct in this connection. Only if the Senate is persuaded that the conviction was consistent with its rights and privileges should it proceed to expel Stevens.