Expelled Rep. Poised to Return to Illinois General Assembly

There is a strong possibility a former state legislator who is fighting a federal indictment could return to the Illinois General Assembly.

The House expelled Derrick Smith after he was was arrested for allegedly taking a $7,000 bribe, but he is still on the ballot for Tuesday's election and he is ahead in the polls.

In August, the Illinois House voted to expel Smith from the General Assembly by a vote of 100-6.

"The resolution is adopted and Representative Derrick Smith is hereby expelled from the House of Representatives," Speaker of the House Michael Madigan said after the vote.

Smith was booted from office a good five months after the FBI arrested him on allegations he'd taken a $7,000 bribe in exchange for helping a daycare in his west-side Chicago district secure a state grant.

Setting in motion a process that had not been used since 1905, the last time a Representative was kicked out of the House.

Back then, another Cook County Democrat, Representative Frank Comerford, was expelled for "besmirching" the House's reputation. In the election to fill his vacancy, he ran, won, and was right back in office.

Smith could follow in Comerford's footsteps.

Although Smith was arrested just a week ahead of the March primary, he easily won the race, landing himself a space on the general election ballot.

According to polls, he is well on the way to victory. Smith's polling puts him far ahead of his opponent. But this time if he wins, there is no way the House can get rid of him.

The Illinois Constitution has what's basically a "double jeopardy" clause. The constitution's very vague on the issue of expulsion, but it does say "a member may be expelled only once for the same offense."

“The question was fairly raised and discussed internally," said State Rep. Jim Durkin (R-Western Springs).

Durkin served as something like a prosecutor in the House's disciplinary proceedings against Smith. Durkin said legislators were aware of the provisions at the time, but he said they decided to go forward with it anyway.

The integrity of the House was at stake.

“It is something we were aware of, but we also believed we had to do what was within our means to address the issue,” Durkin added.

Durkin said there is little way around it.

Same goes for Barbara Flynn Currie, the House's number two Democrat. 

Both agree that the only caveat would be if  - and that's a big "if" ... Smith is accused of doing something else illegal, unrelated to the bribery charge.

Currie said there's one other way Smith could be removed from the House.

“Should Mr. Smith be convicted of a federal felony, then he would be out on that ground," Currie said.

The state constitution disqualifies anyone convicted of a felony from holding public office.

Durkin, a former prosecutor, said the House did not wait to expel Smith because there is no telling how long the criminal trial would take. There still isn't.

"It could be another year to a year and a half before we actually have a trial at the federal courthouse," he said. "If by chance (Smith) wins his election in November, he could serve through the whole next term. A lot of it depends on when the case will go to trial."

It is important to point out that Smith is fighting the bribery charge. He said he is innocent. His lawyer has hinted he will argue the FBI sting was "entrapment."

Even if Smith gets off on that technicality in court, it is not enough for State Rep.Sid Mathias (R-Buffalo Grove). Mathias has introduced an amendment striking that "double jeopardy" clause from the Constitution.

"I give the example of when Governor Blagojevich was impeached," Mathias said. "Part of that impeachment proceeding included a resolution that he could no longer run for public office. It doesn’t make sense to me why that doesn’t also apply to a House or Senate member.”

It may come as little surprise that Smith's attorney, Victor Henderson, isn't impressed by the idea.

"Would it surprise me that there might be a representative or a group that would try to prevent the representative from being seated in January?" Henderson said. "It would not. Because we’ve already had people approach us with that. But that’s politicians trying to override the will of the people.”

Henderson said his client hasn't worried much about it.

“He's singularly focused on winning the election despite the onslaught of fear Democratic Party officials who are trying to undermine his reelection bid … he has not … at least with me … focused on the legalities of how it would impact him in the future once he wins in terms of sitting in the House again,” Henderson said.

What may be surprising is that Smith's opponent, Lance Tyson, does not favor the idea either. 

“Rep. Mathias's resolution - I’m looking at it - I don’t think that it’s right," Tyson said. "The vote .. don’t, don’t underestimate the voters. I have a lot of faith in them.”

Tyson calls himself the "true Democrat" in the race  - even though on the ballot he's got a "Unity Party" label. 

After the bribery allegations, Democratic leaders selected Tyson as their candidate.  But because Smith refused to give up his slot as the Democrat, they had to create a third party.

Despite polls that have him trailing Smith, Tyson said he has confidence in 10th district voters.

“It would be pretty much shutting folks off form state resources," Tyson said. "Whether it be because he's going to be focused on making sure he doesn't go to the federal penitentiary, or just the reality that he has no creditability in terms of negotiating and to be able to bring resources back to the ... i.e. to do his job. And so, I don’t think that Representative Mathias's resolution is right because we will win this race."

But if the polls are correct and Smith wins when legislators are sworn in for a new term in January, he could be standing shoulder to shoulder with many of the very lawmakers who led to his ousting.

Rep. Durkin, who helped lead the charge in expelling Smith from the House, said he cannot imagine how Smith will feel.

“Add it the awkward moments in Illinois history; not one to be proud of though,” Durkin said.

Durkin said he hopes the same voters who chose Smith in the primary, a week after his arrest, are paying more attention this time.

Meanwhile, on Friday, Illinois Secretary of State Jesse White had some harsh words for Smith.

"As far as I'm concerned, he's not welcome in my organization, he's not welcome on the West Side and he's definitely not welcome to represent me in Springfield," White said.

White made the comments at a rally for Smith's opponent in the race, Lance Tyson. Several top elected Democrats from Chicago's West Side attended the event, including Gov. Pat Quinn and Chicago Aldermen Walter Burnett (27th) and Jason Ervin (28th).

White runs a powerful political operation on Chicago's West Side and he once had gone to bat for Derrick Smith.

"Someone told me that when you take money, make sure you take enough so you can afford a lawyer," White said to laughter and an "Amen" at the rally.

Smith said White's comments don't bother him.

"As I've been talking to constituents on the West Side, I think they make the decision on who's allowed on the West Side and who's not," Smith said in a phone interview in response to White's comments. "And they have done so and showed me that I'm welcome in the primary."

Despite his arrest, some polls have shown Smith with a sizable lead in the race. The district runs from Garfield Park on Chicago's West Side to Wicker Park on the northwest side to Lincoln Park on the North Side, a region that heavily supports Democratic candidates.

Smith has used the Democratic label heavily in his campaigning, saying that he's the true Democrat in the race since he won the primary. Meantime Tyson has maintained that he is the real Democrat in the race, since it was Democrats who slated him to run against Smith. There is no Republican on the ballot.