The case also presents Senate Democrats with a major distraction hanging over their return to Washington this week for the start of the new Congress.
Senate Majority Leader Harry Reid (D-Nev.) has made clear that he won’t swear in Roland Burris, the 71-year-old former state comptroller and attorney general who was appointed to the Senate by Blagojevich last week. But Democratic Senate aides are tamping down the idea that Burris would be physically blocked by Capitol Police when the Senate is gaveled into session Tuesday. Burris has said that he will leave upon being denied entry to the Senate chamber.
But Reid’s office isn’t backing down on its plan to not seat Burris — and top advisers to Burris are suggesting that Reid doesn’t want an African-American to succeed Obama.
“It’s interesting that all those who are viable are white women and the ones who are unacceptable are black men,” Prince Riley, a senior consultant to Burris, told Politico.
Riley was alluding to a Chicago Sun-Times story Saturday indicating that Reid called Blagojevich on Dec. 3, shortly before the governor was arrested on corruption charges, including the allegation that he'd tried to sell Obama's Senate seat to the highest bidder.
In the call — which was presumably taped by U.S. Attorney Patrick Fitzgerald, who'd tapped the governor's phones in the course of the investigation — Reid reportedly argued against appointing Rep. Jesse Jackson Jr., Rep. Danny Davis or state Senate President Emil Jones, all of whom are black, in favor of either state Veterans Affairs Director Tammy Duckworth, who is Thai-American, or Attorney General Lisa Madigan, who is white.
“If Mr. Reid and others are offended by his presence, I’m left with no answers,” Riley said. “Sen. Burris is a former attorney general, former comptroller, he has impeccable credentials. Why wouldn’t a man of that character be an asset to the Senate?”
Reid spokesman Jim Manley acknowledged that his boss talked to Blagojevich but deflected a question about Riley’s suggestion that race was a factor in Reid's preferences.
“Look, the fact is, that if Gov. Blagojevich would do the right thing and resign, the new governor, if he saw fit, could appoint Congressman Jackson, Congressman Davis, Emil Jones or Roland Burris,” Manley said.
Reid’s aides wouldn’t say so, but the Senate leader’s concern over the three Chicago-based African-Americans seems centered on whether they could win statewide reelection in 2010.
For now, Manley said, Reid is “looking for ways to diffuse the situation” — a recognition that there's little political upside to blocking a qualified, scandal-free (except by association with Blagojevich) African-American from a Senate that, with Obama gone, now has no black members.
Reid and Burris may meet as soon as Wednesday, Manley said.
“This has nothing to do with Mr. Burris,” he emphasized.
In a statement issued Saturday night, Reid made no mention of Burris, instead focusing his fire exclusively on Blagojevich’s apparent leak to the Sun-Times. It was, Reid said, a “regrettable and reprehensible” attempt by the embattled governor to distract attention from his “daunting legal problems and damaged credibility.”
But Reid also acknowledged that the situation had the potential to fuel intraparty divisions among Democratic leaders and the party’s most loyal constituency.
“I will not allow his corruption charges or his antics to distract me from leading the Senate, to drive a wedge in our party or to obscure he facts,” Reid said.
Senate aides would not specify how exactly they could avoid the potential chaos in the weeks ahead, but it’s increasingly clear that the plan is to refer the matter to the Senate Rules Committee to buy some time.
Doing so would allow the Illinois Legislature to conclude impeachment proceedings against Blagojevich — something that could happen as soon as this week — and remove him from office, which would give Lt. Gov. Pat Quinn, a Democrat, appointment powers.
"We have been looking into it," said Howard Gantman, staff director for the Senate Rules Committee. "It's a major issue facing the Senate."
There's a chance, though, that the matter may never reach the Rules Committee. According to Senate aides, if the Illinois secretary of state refuses to sign Burris’ certification, the parliamentarian of the Senate could find it to be not legitimate, making him ineligible to be sworn in. That would set up a potential legal challenge.
Riley said Saturday that the Burris camp had not yet heard from Reid and was prepared to go to court to force the Senate’s hand. That move would likely come if and when the Illinois Supreme Court compels Illinois Secretary of State Jesse White to sign and affix a seal to Burris’ certificate of appointment, something White has so far refused to do.
Even without the signature and seal, Burris’ attorney, Timothy Wright III, sent a letter Friday to Reid and other Senate leaders arguing that those final steps “would only serve to verify a fact that is now indisputable — Gov. Blagojevich has appointed Roland Burris to the United States Senate.”
As for whether the charges against Blagojevich taint the appointment — the central argument against seating Burris — the would-be senator and his allies are citing other high-profile elected officials who acted improperly yet still carried out their duties.
“He's exercising his constitutional responsibilities and authority,” Burris said of Blagojevich in an interview on PBS on Friday. “One other example is with my good friend, President Clinton, was also impeached. He was still carrying on the duties and responsibility of the presidency.”
Referring Saturday to appointments made by Clinton and former President Richard Nixon, Riley added: “Were any of their judges pulled off the bench?”
Experts said that stalling is the Senate’s best course of action in the thorny and legally unclear case.
“It’s the most legally viable one,” said Kenneth A. Gross, who heads the political law practice at Skadden Arps. “The one thing the Senate has perfected is the ability to slow things down. And the legal arguments in favor of just excluding Burris are not very good. At least if you gum up the works here, you could have two people nominated for the slot.”
Such a prospect would likely mean months of legal wrangling over which of the two appointees should be seated.
“It could be very ugly,” added Gross. “The only legal authority the Senate clearly has is expulsion rather than exclusion. So the better legal argument is to swear [Burris] in and expel him — but it doesn’t seem like they want to do that.”
It is, said Gross, “a huge mess.”
For now, Reid and Senate Democrats have some breathing room.
“For the time being, the claim that Burris has may not be ripe for determination by the courts,” said Jan Baran, a top Washington election law attorney who practices at Wiley Rein.
Baran said that Burris likely could not force a court to seat him if he has not been excluded but merely referred to the Rules Committee.
“Just because he doesn’t get seated Tuesday doesn’t mean he’s not going to get seated,” Baran noted.
Not all Democrats, however, want to se Burris denied the seat.
Phil Bredesen, the governor of Tennessee, and Walter Dellinger, a former Clinton Justice Department official and solicitor general, said that, Blagojevich’s motives aside, the rule of law must be followed.
Accusing the Bush administration of acting unlawfully, Bredesen wrote on Politico’s Arena: “Fellow Democrats: stop what you’re doing, seat Mr. Burris, start us back on the path of respecting the rule of law even when we don’t like it, and most importantly turn your attention to a long list of issues that actually matter.”
Dellinger said if the appointment wasn’t unlawful, Burris should be seated.
“Rejecting Burris without first ascertaining that there is a solid legal basis for doing so would be a greater stain on the Senate’s honor than seating someone who foolishly accepted [appointment] by a knave,” Dellinger wrote on the Arena.
Not surprisingly, Republicans are crowing over the Democrat's internecine clash, and indulging in some schadenfreude after a difficult election. Texas Sen. John Cornyn, head of the GOP’s Senate campaign committee, issued a statement Saturday hinting at the same racial factor cited by Burris’ adviser.
"For the last several weeks, Sen. Reid has led the charge to deny the people of Illinois a voice in choosing their next U.S. senator in a special election,” said Cornyn. “Now we learn that Sen. Reid also took the extraordinary step to lobby against two sitting U.S. congressmen and the state Senate majority leader in Illinois, and instead told Gov. Blagojevich that he supported an appointment for an individual who recently lost a U.S. House election. The people of Illinois deserve a simple explanation from Sen. Reid — why does he believe these three Illinois officeholders are 'unelectable' to the U.S. Senate?"