Carol Felsenthal
On politics

Could Jesse Jackson Jr. Be Indicted Before Election Day?

For the beleaguered 2nd District congressman, the weekend brought more bad news. Legal experts weigh in on whether Jackson could be indicted in the next few weeks.

For beleaguered 2nd District Congressman Jesse Jackson Jr., the weekend brought more bad news. The Sun-Times broke the story Friday that the feds had launched a criminal probe into “suspicious activity…. involving the congressman’s finances related to his House seat and the possibility of inappropriate expenditures.” The probe, we learned, by the FBI and the U.S. Attorney in the District of Columbia, was launched before Jackson’s mysterious leave-taking from Congress starting last June 10.

On Sunday, the Wall Street Journal piled on more damaging details of an investigation it described as “nearing completion.” Campaign funds and money from his House spending account allegedly were used to decorate the Jacksons’ D.C. home. The Journal also reported that Jackson’s lawyers had “sought assurance from senior Justice Department officials to not seek an indictment before the November election”—assurances that the feds refused to give.

I asked Northwestern University law professor Ron Allen if there exists what had been described to me as an “unwritten rule” to not indict a sitting member of Congress this close to an election. Allen—who is an expert on evidence, criminal procedure, and constitutional law—told me by telephone: “There is no rule,” explaining that the feds would indict when the indictment was ready, when it’s an “appropriate time to indict.” He did note that the Justice Department wants to avoid the “appearance of partisanship,” but that standard “can work both ways. A month before the election could be viewed as partisan, but delaying, embargoing for months, could be viewed the same way.” 

I asked Allen if it was unusual for Jackson’s lawyers to request an assurance that any indictment come after the election. “Jackson’s lawyers don’t know how the Justice Department works,” Allen said. “[The DOJ] would never do that [issue such assurances].”

Robert Bennett, also a law professor at Northwestern and a former dean of the law school, where his specialty is constitutional law, told me via email that he is “fairly confident” that “prosecutors would insist that the timing of elections does not and should not bear—either way—on when an indictment is brought down.”

But others said that as practical matter, any indictment is unlikely to come in the next three weeks. “It would be unusual for an indictment to come down this close before an election,” Rob Warden, executive Director of the Center on Wrongful Convictions, told me via email.

Sam Skinner, a former U.S. Attorney for the Northern District of Illinois (appointed by Gerald Ford in 1975), told me by telephone that deciding when to bring an indictment is the “basically the U.S. Attorney’s call. I’m not aware of any formal policy” or unwritten rule. Skinner argued though that these investigations are “long and time-consuming,” and the there would be, in his opinion, long odds against it “com[ing] down, say, just one week before the election.”

Ron Allen noted that an indictment has no effect on Jackson’s running in November—or taking his seat should he win re-election. Jackson could be expelled by a two-thirds vote of the House, but that would require a trial and conviction.

This latest probe is not connected to the House Ethics Committee investigation into offers of fundraising money to former Governor Rod Blagojevich from an alleged Jackson emissary in exchange for Blagojevich’s appointment of Jackson, 47, to Barack Obama’s Senate seat. The committee’s probe is ongoing; Jackson has not been charged with any wrongdoing in connection with the Senate seat matter.

For some historical perspective, it’s interesting to compare Jackson’s situation to that of the late Chicago Congressman Dan Rostenkowski, who was indicted, convicted, and served jail time for using House funds to buy such gifts as rocking chairs for friends and supporters (among other more serious charges). He ran and won re-nomination in a contested Democratic primary in March 1994, was indicted the following June—so there was a much longer space between indictment and general election—and ran for re-election that November. He was defeated by Michael Flanagan, an unknown Republican who held the seat for just two years until he lost it to Rod Blagojevich.

Sam Skinner said he is still peeved about an indictment of Reagan Secretary of Defense Caspar Weinberger that came the Friday before Election Day 1992. Weinberger had been indicted months earlier in the Iran Contra scandal by special prosecutor Lawrece Walsh. Walsh issued a new indictment on October 30, 1992, including a count involving then-Vice President George H.W. Bush in a plan to allow Israel to sell arms to Iran in exchange for release of hostages in Lebanon. Some, like Skinner (who served as Bush’s Secretary of Transportation and then his chief-of-staff), believe that the new indictment contributed to Bush’s defeat by Bill Clinton the following Tuesday.

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