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Panel: Indicted Rep. Derrick Smith should be expelled from House

State Rep. Derrick Smith

State Rep. Derrick Smith

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Updated: August 21, 2012 6:26AM

State Rep. Derrick Smith should be the first member of the Illinois House to be expelled in more than a century after tarnishing the integrity of the legislative chamber with his federal bribery arrest, a panel of lawmakers voted Thursday.

The 12-member House Select Committee on Discipline, made up of six Republicans and six Democrats, agreed by an 11-1 vote to recommend that the full House be asked to oust the West Side Democrat

“It’s with a heavy heart that we take this action today. I think I speak for each and every one of us when I say it’s a sad day for us and a very sad day for the Illinois House of Representatives,” said House Majority Leader Barbara Flynn Currie (D-Chicago), chairwoman of the House committee.

“Not any one of us takes joy in sitting in judgment of any of our House colleagues,” she said.

Currie did not know specifically when the full House would be called into session to vote on the possible expulsion but added it should be before the November election and that there is “no excuse for letting this drag out.”

“It seems to me that it’s important to the people of this state to know we’ve taken appropriate action when someone seems quite flagrantly to have violated not only their oath but also their responsibility,” she said.

Smith is awaiting trial next year on the bribery charge after his March 13 arrest in an undercover FBI sting where he allegedly accepted a $7,000 bribe from a secret government informant, who said he was acting on behalf of a purported Chicago daycare operator seeking Smith’s help in securing a $50,000 state grant.

With Smith opting not to appear Thursday, the panel chose the harshest punishment it could deliver against him after deliberating for about 2 ½ hours. That followed earlier debate between Smith’s lawyer and two legislative prosecutors for 2 ½ hours in a hearing that carried the unmistakable feel of a criminal trial.

The only vote against expelling Smith came from state Rep. Al Riley (D-Olympia Fields), who explained that decision is best left for voters not Smith’s House colleagues.

“I felt especially with an election coming up, the people of the district would be better served to make a determination on whether Derrick Smith was the person who should represent them in Springfield. My view was that the penalty should be harsh but something less than expulsion,” Riley said.

Smith’s lawyer, Victor Henderson, had urged the committee not to rush to judgment and afterwards suggested a political motivation that might have been behind Thursday’s committee vote.

“The 800-pound gorilla in the room is that they want his seat,” Henderson told reporters. “That’s what’s going on. It’s not about fairness. It’s not about being deliberate. It’s not about being above board. There are powerful people who want his seat, and … as Rep. Riley said, it should be the people of the 10th District who decide who gets this seat.”

Before the vote, two legislative prosecutors argued for expulsion by focusing on the allegation Smith took a bribe — a crime that only worsens an already cynical public’s view of state government following corruption scandals that sent two successive governors to prison.

“This is not a moving violation. This is not a simple battery, not a DUI. This is not a trivial matter. It’s a crime Rep. Smith was alleged to have participated in by using his public office, and it goes to the very core … of why we serve in Springfield,” said Rep. Jim Durkin (R-Western Springs), a former criminal prosecutor and one of two House managers assigned to make the case for discipline against Smith.

The result of Smith’s conduct was to “impugn and soil the integrity of our chamber,” said Durkin, who pushed for Smith’s expulsion along with state Rep. Lou Lang (D-Skokie), the other House manager.

During the hearing, Henderson argued that the legislative deck was stacked against his client and that the House needed to hear from the undercover informant and an FBI agent — something federal prosecutors have refused to let happen — before steamrolling Smith with expulsion.

“We believe at the end of the day that the representative will be exonerated, and we appreciate the people who are supporting him, especially the people like the Japanese, black people and people who have ancestors who were mistreated in this country,” Henderson said.

Underscoring how Smith hasn’t had any chance to scrutinize and refute the witnesses and evidence against him, Henderson urged the panel to “get the information and then act as opposed to acting and getting the information.”

Henderson also zeroed in an April 10 letter from former U.S. Attorney Patrick Fitzgerald correcting misstatements an FBI agent made in the criminal complaint against Smith.

Fitzgerald said FBI Special Agent Bryan Butler misspoke that the informant’s criminal record was limited to an arrest for domestic assault, with no conviction. Fitzgerald’s letter revealed the informant also had a 2004 drug conviction and a 1978 burglary conviction, both resulting in probation — and “approximately 20 prior arrests.”

“You don’t have any evidence. You have nothing,” Henderson told the panel, his voice rising and referring to the informant as a “con man.”

“All you have at this point in time is a complaint, which was filed in the federal district courthouse by an FBI agent who has admitted he made material misrepresentations of fact to a sitting federal judge.

“If I had to guess, you have one percent of the information. The other 99 percent you don’t have,” Henderson said, citing how federal prosecutors built high-profile cases elsewhere only to see them fail against defendants like presidential candidate John Edwards, pitcher Roger Clemens and former U.S. Sen. Ted Stevens (R-Alaska).

The recommendation for Smith’s expulsion requires the House to be brought back into session at some point this summer or fall, with 79 out of the 118 members required to vote in favor of the punishment for it to take effect. If Smith would win election in November, he could be seated again in January despite being expelled.

The last time a House member was expelled was in 1905, when the chamber voted 121-13 to oust Rep. Frank D. Comerford (D-Chicago) for actions that “besmirched the good name and reputation of this General Assembly.”

His sin: giving a speech to students and faculty of the Illinois College of Law in Chicago in January 1905 in which he claimed there was wholesale corruption in both chambers of the Legislature.

But Comerford’s expulsion was short-lived. He was re-elected a few months later to fill the vacancy caused by his ouster.

During Thursday’s hearing, both Durkin and Lang needled Smith for not facing his political accusers, with Durkin imploring Smith to “jump in a car and come down and join us.”

“It may be legal for him to be silent, but it’s not right,” Lang said. “He represents 110,000 people in his district and 13 million people in the state of Illinois … and he’s our colleague. He has a duty and responsibility to stand before us and tell us what’s going on here.”

Henderson said Smith’s legal team had recommended that he not appear before the committee and said it was a double-standard to fault Smith for not appearing when the key government witnesses Henderson sought were no-shows because federal prosecutors objected to their appearance.

“Where’s the informant? You asked about Rep. Smith, but where’s the FBI agent?” Henderson said.

“His choices under the rules are to come and speak to you and jeopardize his Fifth Amendment rights or not come and run the risk people will draw negative inferences,” he said.

Smith’s dilemma with the Legislature differs from imprisoned ex-Gov. Rod Blagojevich in that he spoke directly to senators during his impeachment trial, and Fitzgerald allowed legislators to use four government recordings and to hear testimony from the FBI agent who signed Blagojevich’s criminal complaint.

The rules for impeachment are spelled out in the Illinois Constitution, while the guidelines involving Smith’s case rest merely in House rules. Those rules give wide latitude to Currie’s committee to decide what constitutes a punishable offense and to consider what weight to attach to Smith’s refusal to testify.

Beyond focusing on Smith’s absence, Durkin noted the numerous phone conversations Smith allegedly had with the informant about the bribe while the House was in session and Smith was in Springfield. The Sun-Times reported Thursday about seven days when such calls allegedly occurred and involved the bribe, and Smith was at the Capitol.

“While we were trying to figure out how to balance the budget, reform Medicaid and reform our public pension systems, Rep. Smith, on the other hand, was working on a bribe,” Durkin said.

In his closing argument, Henderson hit hard again at the fact his client still hasn’t been convicted and said the evidence federal prosecutors have lodged against him is built only on allegations, not necessarily the truth.

“Rep. Smith isn’t afraid of the truth. He can handle the truth. He can stand on the truth. He has no choice but to deal with the truth. The truth is what it is. But what I submit to you is you don’t know the truth,” Henderson said.

“This is something that’s much bigger than Derrick Smith. To me, this is really about democracy and democracy in action,” he said. “And either we believe in democracy or we don’t.”

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