Could Weiner escape ethics probe by resigning and running for seat again? Update: Weiner to hold presser at 2 ET; Update: Video added

Could Anthony Weiner’s resignation be an elaborate effort to return to Congress free of the threat of an ethics probe?  Patterico first asked this question on Twitter after word of Weiner’s decision to resign became known, but Josh Chafetz first analyzed the potential of such a strategy yesterday for Slate.  Such a strategy could work, and in fact has worked in the past:

There is a long tradition in Anglo-American legislative practice that the voters should have the final say on ethical matters. In England in 1764, John Wilkes was expelled from the House of Commons for a series of “scandalous” publications. He fled to France for several years, but returned to London in 1768 and stood for Parliament. He won, but was not allowed to take his seat, and a new election was ordered. He won again, and again, and again. After his fourth consecutive victory, the House simply declared his opponent the victor. But Wilkes kept standing for election, all the time growing more popular as a symbol of public discontent at the ruling elite. “Wilkes and Liberty!” was a rallying cry in London and the colonies, and finally the House bowed to public pressure and seated Wilkes in 1774.

Eight years later, all records of Wilkes’ continued exclusions from Parliament were expunged from the House of Commons Journal “as being subversive of the rights of the whole body of electors of this kingdom.” The Wilkes affair was understood to stand for the constitutional principle that no one should be expelled twice for the same offense—if the voters had forgiven him, who were the other members of Parliament to say no?

At the time the American Constitution was drafted, all three state constitutions that contained an explicit power of expulsion (Delaware, Maryland, and Pennsylvania) prohibited a second expulsion for the same offense. An early draft of the Constitution contained the same limitation on the congressional houses’ expulsion power, but that limitation was dropped in later revisions. Still, it is widely understood that any body seeking to re-expel a re-elected member would be in serious tension with constitutional values, if not in explicit contravention of constitutional text.

In 1857, Rep. Orsamus Matteson, a Whig from New York (what is it with my home state?), resigned to escape an expulsion resolution arising from corruption allegations. He promptly ran for and was re-elected to his old seat. In the debates over whether to expel him again, the Wilkes precedent was repeatedly invoked, and ultimately the House took no action. Likewise, Rep. Preston Brooks of South Carolina, who caned Sen. Charles Sumner nearly to death on the Senate floor in 1856, survived an expulsion resolution. Nevertheless, he chose to resign and seek re-election, seeking his constituents’ blessing of his behavior. They gave it, re-electing him, and he was seated without controversy less than a month after he resigned.

Of course, it’s worth noting that Congress could choose to ignore its precedent, as there is no bar on seeking a new expulsion order for issues in a previous term.  But in this case, expulsion was an unlikely outcome anyway.  Weiner wasn’t accused of corruption or abuse of power, but mainly of being an embarrassment to Democrats in particular and Congress in general.  Congress refused to expel Charlie Rangel last year, who was accused of corruption, and they haven’t even addressed the case of Maxine Waters, who is accused of abusing her power for personal financial gain.  Not only did the House not expel William “Cold Cash” Jefferson, they didn’t even strip him of all his committee assignments, even though he was later convicted of corruption.

So it seems pretty unlikely that this is a grand strategy by Weiner to shed himself of an ethics probe.  Supposing for the moment that Weiner has that strategy in mind, it’s even less likely to succeed, for a couple of reasons.  One, NY-09 is a safe Democratic district, held by the same party for almost 90 years.  Democrats will find a strong candidate for an upcoming special election, and Weiner’s peccadilloes will almost certainly keep him from gaining any traction at all if he chooses to challenge for his old seat.  Democrats don’t need Weiner to hold the seat, and even if constituents wanted him to stand his ground, they’re not going to remain that loyal to a man who has porn stars scolding his lack of ethics.  Second, the district may disappear anyway for the 2012 election as New York has to redistrict for two lost seats in the House. If Weiner is still embarrassing Democrats by that time, they have a handy way of making that a temporary condition.

Don’t expect Weiner to return to electoral politics any time soon.  I’d guess that Weiner has a job lined up already that will keep his profile low, and that was the price for his upcoming resignation.

Update: Reports on Twitter say that the Capitol police have Weiner’s office and the corridor in the Rayburn Building closed because of a “suspicious package.”  Meanwhile, Weiner has scheduled a press conference for 2 pm ET, and I’ll find an embed code to carry it live here.

Update II: I couldn’t find a live video feed, but here’s the video of Weiner’s statement from ABC:

He certainly sounded like a man who thinks he still has a future in politics. The first part of this statement sounded like a stump speech. I’m not sure that getting cheers from the resignation and a hearty “Bye-bye, pervert!” is a sign of any remaining political capital.

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