The Delaware Senate on Monday passed a resolution to begin a process Democratic leadership hopes will result in the removal of one of their own: State Auditor Kathleen McGuiness.
Every Republican voted against the measure, putting them in line with House Speaker Pete Schwartzkopf, D-Rehoboth, who said he has “no intention of calling the House into session to consider this resolution at this time.”
“This isn’t taking decisive action: it’s political theater,” Schwartzkopf said. “The Senate’s resolution would simply start a lengthy process to ultimately ask the governor to remove the state auditor from office – a request he’s not required to fulfill, and a request he’s indicated that he wouldn’t carry out at this time anyway.”
McGuiness — who on July 1 was found guilty on three misdemeanor corruption charges — has asked the judge in her trial to issue a judgment of acquittal and overrule the jury’s verdict.
The Kent County jury found McGuiness guilty on charges of official misconduct, structuring and conflict of interest. She was acquitted on charges of theft and intimidation, both felonies, after a three-week trial.
But the judge has not yet entered the guilty verdict and has yet to rule on motions by McGuiness’ attorney to acquit her, something Republicans — and Schwartzkopf — said the Senate should have waited for before acting.
Gov. John Carney seems to agree. Days after the jury’s verdict, Carney said he would wait for the judge before moving forward with any attempt to remove McGuiness.
“The Auditor of Accounts has been found guilty by a jury of three misdemeanors,” Carney said in a press release. “The Delaware Supreme Court has made it clear that … the Governor has no power to act until after the entry of a judgment of conviction by the Superior Court.”
The press release went on to explain that while the governor believes McGuiness cannot do her job effectively under the circumstances, and while he understands that some in the General Assembly have called for her immediate removal from office, “it is the Governor’s responsibility under the law to await the final determination of the court and then to determine his constitutional obligations after the entry of judgment.”
Sen. Dave Sokola, D-Newark, is not interested in waiting. Sokola, the Senate President Pro Tempore, sponsored the resolution encouraging McGuiness’ outsting.
“Any public official who engages in the actions that Auditor McGuiness was found guilty of by a jury is unfit for public office, but especially the state’s top financial watchdog,” Sokola said.
That’s why Senate Democratic leadership called on McGuiness to resign after the jury found her guilty, Sokola said.
“Once again, she did not heed those calls,” he said. “By refusing to take any accountability for her actions and by actively campaigning for reelection, the auditor has left this body with no choice.”
Republicans, however, didn’t think the choice was so clear.
“We don’t stand opposed because we believe [McGuiness] did nothing wrong,” said Sen. Brian Pettyjohn, R-Georgetown. “On the contrary, we stand opposed to the timing of this resolution because this individual — in the eyes of the law — is still innocent.”
Pettyjohn said the Republican Caucus wasn’t asking for an indefinite delay in the event McGuiness pursues an appeal, but that the Senate withhold action at least until the judge finalizes the verdict.
“Every person in our state is entitled to due process,” he said. “Soon, the richest man in the world will be involved in a court case here in Delaware. Our courts also hear from those who are the most destitute. Each of them and everyone in between is entitled to equal protection and due process under the law.”
He added that the Senate’s action Monday is a “not-so-gentle erosion of those bedrock principles.”
Pettyjohn moved to table the resolution until the judge enters a guilty verdict. The motion failed.
Sen. Colin Bonini, R-Dover, said he didn’t vote for McGuiness and doesn’t plan to in the next election, either.
“I don’t know her very well,” Bonini said. “But let me tell you on thing I do know about her: She was freely and fairly elected.”
Democrats will have an opportunity during the Sept. 13 primary election to vote McGuiness out of office, Bonini said. If she wins that election, Delawareans will have yet another opportunity to choose someone other than her to be the state’s next auditor.
“But we can’t live in a place where we use the tools of government against political opponents that we don’t like,” he said. “People in these chambers, by the way, have been charged with misdemeanors.”
The idea that the Senate’s resolution was politically motivated offended Sen. Laura Sturgeon, D-Greenville.
“I did vote for Auditor McGuiness and I likely would have voted for her again, if she hadn’t been charged and subsequently found guilty of three misdemeanor charges involving her office,” Sturgeon said. “So this is not politically motivated.”
Sen. Sarah McBride, D-Wilmington, called Monday “a sad day, but sadly it is a necessary day.”
“The foundation of all of the work that we do is built on public trust,” McBride said. “And sadly, with both the indictment and the guilty verdict by a jury, the public trust has been broken.”
McBride said the Senate has no obligation to wait for the judge to enter the guilty verdict to take action against McGuiness. She pointed to numerous examples in other states and at the federal level where public officials were removed from office or resigned prior to a conviction.
“Just as a business owner wouldn’t be required to maintain employment of someone who has been found guilty by a jury of their peers of stealing from that business, neither does the Delaware Constitution require us to allow for an individual who has even been charged, let alone found guilty by a jury of their peers, to continue in office.”
But seeking to remove McGuiness from office only for the judge to grant a new trial or acquit her altogether is a risk too big for Sen. Dave Lawson, R-Marydel.
“We need to slow down, rein it in a little bit, and quit being premature,” Lawson said. “Because if this is thrown out by the court, if she’s found not guilty, we’re gonna look less than wise and I’ll leave it at that.”
Lawson said many Delawareans see what’s happening as “political theater.”
What happens next?
If Thursday’s resolution passes in both chambers, a joint session of the General Assembly will hold a hearing to decide whether reasonable cause exists for Gov. John Carney to remove McGuiness.
The hearing would be held within ten days of the resolution’s passage.
The resolution cites Article III, Section 13 of the Delaware Consitution, which says:
“The Governor may for any reasonable cause remove any officer, except the Lieutenant-Governor and members of the General Assembly, upon the address of two-thirds of all the members elected to each House of the General Assembly…The person against whom the General Assembly may be about to proceed shall receive notice thereof, accompanied with the cause alleged for his or her removal, at least ten days before the day on which either House of the General Assembly shall act thereon.”
The Senate’s resolution required a simple majority to pass. To ask the governor to remove McGuiness requires a two-thirds vote of the joint session.
Auditor could attend
According to an advisory opinion issued by the Supreme Court in March, the hearing “preferably would include the right [for McGuiness] to attend, be represented by counsel, call witnesses, and introduce evidence.”
That could mean a days- or even weeks-long public spectacle during which McGuiness’ legal counsel could rehash her entire trial, not in a court of law, but in the General Assembly.
“It’s important that the public understand that what the Senate is proposing is to start a process where the General Assembly would need to draft rules, give 10 days’ notice and then hold what amounts to a trial – where the auditor can be represented by legal counsel, call witnesses and present evidence,” Schwartzkopf said. “Afterward, each chamber would need a two-thirds vote to merely ask the governor to remove the auditor.
“Both options lead to the governor making the final call on removal, and he’s already said he intends to wait until a conviction has been entered, at which point he’s required to remove the auditor.”