Investigative panel at a loss for evidence

By Jamey Dunn

A committee tasked with determining whether there is cause to discipline a lawmaker accused of bribery has hit a wall in terms of evidence that is available for its investigation.

Rep. Derrick Smith, a Chicago Democrat, was arrested on bribery charges in March. Prosecutors allege that Smith accepted a $7,000 bribe for recommending a day care for a construction grant. Smith was the subject of a federal sting, so the day care was not actually seeking the grant. Smith has since been indicted on a bribery charge. The indictment said that $4,500 of the alleged bribe money has not been recovered.

A House Special Investigation Committee voted today to request Smith to testify before the panel under oath. The committee must decide whether the House should pursue disciplinary action against Smith. The move came after United States Attorney Patrick Fitzgerald told the committee that his office would not share evidence with the committee. Fitzgerald said the committee cannot seek information through subpoena or requests under the Freedom of Information Act without potentially causing harm to criminal investigations. “I can tell you that our investigation of Representative Smith is continuing, and it is our strongly held belief that any disclosure of the government’s evidence or active inquiry conducted by the committee into the allegations of the federal indictment will likely interfere with our pending case and ongoing investigations,” a letter from Fitzgerald to the committee stated.

Rep. Elaine Nekritz, the chair of committee, said Fitzgerald’s response was not entirely unexpected. “The committee's hands are, I think, significantly tied by the criminal proceeding. … I’m not surprised that they didn’t turn over evidence to us. I’m frankly not surprised that they would say, ‘Don’t do your own investigation.’ But that does really limit what we can do.”

Nekritz said one option left to the group would be to go directly to Smith. The committee opted to send Smith a letter requesting his testimony instead of issuing a subpoena, but Nekritz said that either option would have the same result. Even if subpoenaed, Smith could opt not to testify based on his Fifth Amendment rights, which protect against self-incrimination. However, Nekritz said that if Smith decides not to testify, the committee could take that into consideration when deciding if there is enough evidence to seek a disciplinary action against him. In criminal court, if a defendant invokes Fifth Amendment rights, it cannot be used against him or her.

Smith did not appear at today’s hearing or any of the previous meetings of the committee. He has returned to work in Springfield, but he has declined to answer questions from the press. A call to his lawyer was not returned.

Nekritz said Smith is expected to enter a plea next week, and the committee wants to see if any new information or documents come out of the court proceedings. “I think it behooves us as we go through this to get as much evidence as we can," Nekritz said. She said the committee does not have to wait until the end of criminal proceedings to make a recommendation to the House, but for now, she would like to wait and see if the committee can get more to go on in the coming weeks.

If the committee recommends disciplinary action, the full House could vote to censure or expel Smith. “In the short run, we would like to see what could become available through the court filings and what the U.S. attorney does through the [evidence] discovery process,’ Nekritz said. “Unfortunately, I have a very short-term view of this now, and it’s very hard to predict months out how that’s all going to play out because it could dramatically change next week.” She said she expects the group to hold another hearing in the next two weeks.