- Her friend, the House speaker, has stopped efforts to have her removed
- Gov. Carney could face a predicament, should he remove an official the voters support?
The saga of Delaware’s convicted Auditor Kathy McGuiness now presents voters with an unusual hypothetical: Could the incumbent be removed from office days before Democrats have the chance to vote for her in the midterm election?
McGuiness became the first statewide elected official to be charged and found guilty of crimes while in office earlier this summer. Yet she is still working as state auditor and is running for reelection, telling voters she’s the victim of an unfair, political prosecution. The primary is weeks away on Sept. 13.
Democratic leaders in the state Senate have played all the cards they can to try to remove her from office, but have been stymied by House Speaker Pete Schwartzkopf, a longtime political ally and friend of McGuiness.
Gov. John Carney, who has the power to oust McGuiness, has said he is waiting for her sentencing before taking possible action.
And so, a month before early votes are due and voters head to the ballot box, all eyes are on Judge William C. Carpenter Jr. who is expected to rule on a recently filed motion seeking a new trial in addition to motions to toss some of the charges, which have been pending since McGuiness’ June trial. If those motions are rejected, he will then set a date for sentencing McGuiness to what all expect will be a term of probation.
A HISTORIC MOMENTDelaware Senate votes to begin process to remove McGuiness, but House speaker kills resolution
Reached through a court spokeswoman, Carpenter declined to comment on when he expects these tasks to occur, whether Carney’s office has discussed the schedule with him or basic rules pertaining to the scheduling of sentencing hearings.
The timing of that sentencing date – which could be in days, weeks or months at Carpenter’s discretion – sets up multiple unprecedented scenarios.
It could lead to a situation in which McGuiness is sentenced before the primary date, removed from office by Carney only to win another term. She could also potentially win her primary, be sentenced shortly after and Carney could be faced with the predicament of removing an elected official endorsed by voters.
Despite the inherent advantage of incumbency, there is no guarantee McGuiness will win reelection, particularly after her three-week criminal trial that featured testimony about her monitoring employee emails, hiring her daughter and running an office rife with conflict.
Her primary opponent, Lydia York, a professional accountant and attorney, has the support of the Delaware Democratic Party – unlike McGuiness. Delaware campaign finance reports are not due until later this month so it’s not clear who is winning the money race.
“I think (McGuiness) has a fighter’s chance,” said Sam Hoff, professor emeritus of history and political science at Delaware State University. “Name recognition is important, fundraising is important.”
The following is a breakdown of some of the scenarios:
What happens if she’s sentenced before the primary?
After a jury last month found McGuiness guilty of three public corruption misdemeanors and acquitted her of two felony charges, the judge presiding over the case now has broad latitude when it comes to sentencing.
It’s just unclear when that will happen.
Though each guilty verdict can carry up to a year in prison, McGuiness is not incarcerated and will most likely not face any prison time as part of her sentence. This makes her sentencing more straightforward than most.
A spokesman for the Delaware Department of Justice said last month that prosecutors were expecting the sentencing to be scheduled midway through August.
Complicating the schedule are the pending motions – one to acquit McGuiness and another seeking a new trial – that could have some chance of overturning some or all of guilty verdicts. If this happens, sentencing would be delayed.
The arguments made by McGuiness’ legal team in the motions run parallel to her ongoing pitch to voters: The trial was unfair and the jury didn’t see all the relevant evidence and was exposed to evidence irrelevant to the charges yet prejudicial to her character.
Prosecutors have filed replies to those motions describing McGuiness’ arguments as “meritless.”
DELAWARE POLITICSMcGuiness’ defense files motions seeking acquittal, new trial in wake of guilty verdict
There is a chance the judge resolves those motions and upholds the jury’s verdicts ahead of the primary date. This would leave Carney with a decision as to whether to move to remove McGuiness just before the election.
Many Democratic leaders are in agreement that McGuiness is no longer fit for office, but there has been little consensus on how or when to remove her. Senate leadership wants her out immediately, and filed a historic resolution last month that would begin that process.
That resolution differs from impeachment since it would consist of petitioning Carney to remove McGuiness and doesn’t disqualify her from running for reelection.
House leadership is vehemently against the resolution, with Schwartzkopf, the speaker, calling it an act of “political theater.” He refuses to call the House back into session, which has killed the resolution. Impeachment, which would make McGuiness ineligible from running for future office and oust her without Carney’s involvement, must begin in the House and Schwartzkopf has shown no sign of instigating such a proceeding.
Instead, House leadership has called on Carney to remove her from office when she is sentenced.
A handful of House Democrats are disappointed and resentful toward House leadership for blocking the Senate resolution. Several lawmakers told Delaware Online/The News Journal that inaction abdicates legislators’ constitutional responsibility.
Rep. Eric Morrison, D-Glasgow, believes the idea of waiting until McGuiness is sentenced is “an excuse for not taking action” and “a way of just once again kicking the can down the road.”
Rep. John Kowalko, a Newark Democrat who is retiring once his term is over this year, said the actions taken by the auditor and House leadership are both a “betrayal of public trust.”
Unlike the Democrats, Republican lawmakers have been united in their belief that no action should be taken against McGuiness until she is sentenced. Republicans came to the Democratic auditor’s defense late last month during the Senate vote to take the initial step to remove McGuiness from office.
“This is wrong,” Sen. Colin Bonini, R-Dover, said during floor debate. “The people are going to tell us. I have faith in their judgments. There’s an election in seven weeks.” Bonini voiced concerns about lawmakers removing officials who have been elected by the public.
Moments later during the debate, Senate Majority Leader Bryan Townsend said he “did not believe that a free and fair election result creates an absolute shield from accountability.”
It’s unclear what action Carney will ultimately take against McGuiness – he has not specifically stated that he will remove her. The governor has only said that he believes McGuiness is not fit for office and that he believes his hands are tied on removing her until she is sentenced.
“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,” spokeswoman Emily David said in a statement last month.
David declined to comment when asked if Carney would commit to removing McGuiness from office even if her conviction is upheld after the primary or general election.
If Carney did remove her before the primary, it wouldn’t disqualify her from running for office, though it would leave a stain on her reputation.
What if she wins before she is sentenced?
If McGuiness is not sentenced before her primary, wins the election and is sentenced after – things will get even weirder.
At that point, Carney would likely be pressured to seek her ouster with McGuiness having just received the endorsement of Democrat voters.
There is some question as to whether Carney has a decision to act or whether he is obligated by the law to do so once McGuiness has been sentenced. There is concern that if she wins a primary, the window for holding her accountable will be slammed shut.
As the law is written, only impeachment by the legislature bars McGuiness from future office. So, she could technically be ousted by the governor and hypothetically assume office for another term if she wins the General Election.
The prospect of her surviving a primary is also a politically tricky one for the Delaware Democratic Party, which before this race had not in recent memory endorsed a candidate challenging a statewide-elected Democrat incumbent running for reelection.
As of now, a single Republican, Janice Lorrah, has filed to run against whoever wins the Democratic primary.
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Morrison, the Glasgow Democrat, fears a potential scenario of officials wanting to let the election play out, with the hopes that McGuiness loses the primary.
“If for some reason the state auditor does win reelection,” he said, “it makes it extremely hard to come back in at that point and remove her from office because then you face the narrative of: ‘Voters have spoken’ and now you’re trying to overturn the election results.”
Morrison is not alone in this concern. Rep. Sherae’a “Rae” Moore believes the House of Representatives should impeach McGuiness. Though a number of House lawmakers believe McGuiness is not fit for office, the option of impeachment is highly unlikely.
Moore believes the average voter is not up-to-date on what’s happening in the Delaware political landscape, and might see her as a viable option.
“So we don’t impeach her,” Moore said. “She gets reelected. She can still take office. What standard are we setting for those individuals who are elected to higher office when government transparency and accountability are an issue?”
Rep. Paul Baumbach, a Newark Democrat who co-sponsored the Senate resolution, believes there’s “too many hypotheticals” when thinking possible outcomes of the election.
“The Constitution lays out a process for the legislature to make a determination whether there’s reasonable cause for removal from office, and there’s no mention in the Constitution of that having to be within a certain time frame of an election. So I really consider those pretty much independent variables.
“I’m certainly hopeful that the voters will take all factors into account in the primary.”
Does McGuiness have a shot at winning the election?
Legislative and party leaders will be hoping these hypotheticals are made moot by McGuiness losing her primary and those leaders are working toward that end.
On Monday, top Democrats including Insurance Commissioner Trinidad Navarro, Senate Pro Tempore David Sokola and a number of state senators and representatives will host a fundraiser for York.
Four years ago, some of the same people were out supporting McGuiness in a heated Democratic primary. York boasts a background as both an attorney and an accountant with a career that includes work in corporate finance.
“I am running for auditor to ensure that the auditor’s office operates with a level of accountability and transparency,” York’s campaign literature reads.
It is York’s first try at public office so while McGuiness will have her criminal convictions dragging her name, she also has the advantage of name recognition after spending the past four years pumping out press releases.
In an interview, McGuiness downplayed the significance of the jury’s verdict on the election, stating that it doesn’t come up with the vast majority of voters she is courting through door-to-door canvassing. She said most people want to talk about issues that affect them, like gas prices or inflation.
When her criminal verdict does come into the conversation, her pitch is the same as her pitch to the judge in both pending motions and her pretrial litigation: She’s been unfairly targeted and nepotism is a part of Delaware government.
“I encourage them to read the motions and keep an open mind because the story today is not the whole truth,” McGuiness said.
She said she is encouraged by internal polling, which she declined to share, as well as officials that have reached out and expressed their support discreetly.
“My name is getting out there,” McGuiness said.
Contact Xerxes Wilson at xwilson@delawareonline.com or Meredith Newman at mnewman@delawareonline.com.
