As you have probably heard, the president-elect (well, the expected president-elect) has expressed the intention to nominate Matt Gaetz as the next attorney general of the United States. Gaetz’s qualifications include some experience with the criminal justice system, though more on the criminal than the justice side, as well as being possibly the most-disliked person on Capitol Hill.
Until two days ago Gaetz was also a member of the U.S. House of Representatives and the subject of a long-running ethics investigation, which was announced by the Ethics Committee on April 9, 2021:
The Committee is aware of public allegations that Matt Gaetz may have engaged in sexual misconduct and/or illicit drug use, shared inappropriate images or videos on the House floor, misused state identification records, converted campaign funds to personal use, and/or accepted a bribe, improper gratuity, or impermissible gift, in violation of House Rules, laws, or other standards of conduct. The Committee, pursuant to Committee Rule 18(a), has begun an investigation and will gather additional information regarding the allegations.
If these allegations do not scream “chief law enforcement officer material” to you, well I guess we know why the voters did not decide to entrust you with the nuclear codes.
At any rate, the ethics investigation was delayed for a couple years at the request of the Department of Justice, which signifies that DOJ was itself investigating some or all of these allegations against its future boss. In May 2023, however, the committee reauthorized its investigation after DOJ withdrew its request to defer.
On June 18, 2024, the committee commented publicly on the status of the Gaetz investigation. It suggested that Gaetz had been less than cooperative with its investigation, noting “the difficulty in obtaining relevant information from Representative Gaetz and others.” This was not the first time Gaetz had declined to cooperate with an ethics investigation. See In the Matter of Allegations Relating to Representative Matt Gaetz, Report No. 116-479 (Aug. 21, 2020) (observing, in an unrelated investigation, that “Representative Gaetz initially declined to testify before the Committee”). Again, just the sort of thing you want in your attorney general.
Nonetheless, the committee reported that it had performed substantial investigative work and had “determined that certain of the allegations merit continued review.” These included the allegations that Gaetz may have “engaged in sexual misconduct and illicit drug use [and] accepted improper gifts.” The committee also “identified additional allegations that merit review,” namely that Gaetz may have “dispensed special privileges and favors to individuals with whom he had a personal relationship, and sought to obstruct government investigations of his conduct.” On the bright side, it dropped for the time being the allegations about sharing inappropriate videos on the House floor, misusing state identification records (I don’t even know what that means), converting campaign funds to personal use, and accepting a bribe or improper gratuity.
Which brings us to this week. According to published reports, the Ethics Committee was set to vote today on releasing its findings from the Gaetz investigation (this meeting has now been cancelled). None of the reports have been clear on exactly what is being voted on. Perhaps an investigative subcommittee has issued a Statement of Alleged Violation which does not call for a sanctions hearing. If so, the full committee could adopt the Statement of Alleged Violation and immediately release the subcommittee’s report, which is what it did in Gaetz’s 2020 case. On the other hand, if an adjudicatory hearing was required, the Statement of Alleged Violation would not become public until sometime after Gaetz filed his answer pursuant to Committee Rule 22. At least this is my understanding of the process, which might be wrong.
In any event, Gaetz short circuited this process by submitting his resignation from the House on Wednesday, the very day he was named as Donald Trump’s pick for attorney general. This deprived the Ethics Committee of jurisdiction over his case, although Citizens for Responsibility and Ethics in Washington (CREW) contends in a letter to the Ethics Committee that this does not deprive it of the discretion to either release the report or forward it to the Senate Judiciary Committee for use in the Gaetz confirmation. CREW argues that the public need for this information is particularly “acute” given that the prospective attorney general was investigated for, among other things, obstructing government investigations.
There can be little doubt that Gaetz’s resignation was for the sole purpose of avoiding accountability under the ethics process. Gaetz’s resignation letter stated: “I hereby resign as United States Representative for Florida’s First Congressional District effective immediately and I do not intend to take the oath of office for the same office in the 119th Congress to pursue the position of Attorney General in the Trump administration.” Notwithstanding his attempt to link his resignation to the nomination for attorney general, there was no reason for Gaetz to resign his seat in the 118th Congress, which will end weeks before the earliest date he could assume the position of attorney general. Most members in Gaetz’s position wait until they are confirmed to resign their seats, but it would be understandable that he might choose to prospectively resign his seat in the 119th Congress so that the process for filling the vacancy by special election can begin immediately. To do this, however, did not require him to resign his seat in the 118th Congress, and it is not even clear that the language used in his resignation letter (he does “not intend to take the oath of office” in the next Congress) is effective to create a vacancy for purposes of allowing Governor DeSantis to call a special election. No one seriously can dispute that the timing of Gaetz’s resignation was driven by the desire to avoid the impending Ethics Committee vote.
We have discussed in the past the general propriety of members resigning from the House for personal convenience or to escape accountability for alleged misconduct. Although Professor Chafetz argues that the Constitution requires members to seek the permission of the House before resigning, my conclusion is “while perhaps there should be a norm/rule against [resignation without the House’s permission], it is not currently prohibited.” But if there were actually any responsibility and ethics in Washington, it would be widely understood that resigning from Congress purely for personal convenience (thereby depriving the member’s constituents of representation for an extended period of time) is not great and resigning to avoid accountability for misconduct is worse.
Getting the Gaetz Report
This brings us to the question raised by the title of this post. Assuming that the Ethics Committee will not release the Gaetz report on its own initiative, is there any way for the Senate Judiciary Committee (SJC) to compel its production? The answer is that it will be tough for several reasons.
First, the SJC would have to be willing and able to issue a subpoena for the report. Committee Rule 9 provides: “The Chair of the Committee, with the agreement of the Ranking Member or by a vote documents, records, or any other materials.” Since the Democrats control the committee until the commencement of the 119th Congress in January, it would be possible for Chairman Durbin to issue subpoenas in this matter. However, from past experience he has been reluctant to use this power for reasons that may become apparent.
Second, assuming that subpoenas can be issued, to whom should they be directed? Theoretically the SJC could subpoena the report from the House Ethics Committee, but this would be (at least) a breach of protocol and tradition. Traditionally, when one house requires information from the other for investigative purposes, it proceeds by requesting permission, rather than by issuing compulsory process. See, e.g., 3 Hinds’ Precedents of the U.S. House of Representatives § 1790 (“When the House desires the testimony of Senators it is proper to ask and obtain leave for them to attend.”). While it could be debated whether each house has the legal authority to compel a member of the other to appear as a witness or the production of documents in the custody of the other, prudence and comity strongly militate against putting the proposition to the test. Durbin has already asked the House Ethics Committee to provide a copy of the report, and I suspect he will leave it there.
But what about seeking the report from Gaetz himself? He and his counsel were entitled to receive a copy of the Statement of Alleged Violation (assuming that is what is at issue) once it was adopted by the investigative subcommittee. I am not sure whether Gaetz would have the underlying investigative report, but he would at least have the Statement of Alleged Violation and other significant documents produced by the committee over the course of its investigation. Moreover, while he will undoubtedly attempt to assert some sort of privilege with regard to the documents, I am not aware of any privilege that would clearly apply. Certainly there is nothing stopping the SJC from issuing a subpoena to him if it so desires.
The problem comes if and when Gaetz refuses to comply with the subpoena, either because he asserts a privilege or because he simply does not cooperate (as he did at least initially with the House Ethics Committee). Criminal enforcement of the subpoena, which the Senate has not attempted in decades, is off the table. That leaves civil enforcement under 28 U.S.C. § 1365(a), which provides:
The United States District Court for the District of Columbia shall have original jurisdiction, without regard to the amount in controversy, over any civil action brought by the Senate or any authorized committee or subcommittee of the Senate to enforce, to secure a declaratory judgment concerning the validity of, or to prevent a threatened refusal or failure to comply with, any subpena or order issued by the Senate or committee or subcommittee of the Senate to any entity acting or purporting to act under color or authority of State law or to any natural person to secure the production of documents or other materials of any kind or the answering of any deposition or interrogatory or to secure testimony or any combination thereof. This section shall not apply to an action to enforce, to secure a declaratory judgment concerning the validity of, or to prevent a threatened refusal to comply with, any subpena or order issued to an officer or employee of the executive branch of the Federal Government acting within his or her official capacity, except that this section shall apply if the refusal to comply is based on the assertion of a personal privilege or objection and is not based on a governmental privilege or objection the assertion of which has been authorized by the executive branch of the Federal Government.
(emphasis added).
The good news is that nothing in this section would seem to exempt Gaetz from complying with the Senate subpoena (don’t ask me why its spelled “subpena” in the statute- I mean, I know the answer, but please don’t ask me). He is not “an office or employee of the executive branch,” nor was he such at any relevant time. So there should be no problem getting the U.S. district court to hear and resolve any privilege issues or other objections that Gaetz may have to compliance with the subpoena.
The problem arises in regard to authorizing the Senate suit. Senate Legal Counsel is authorized by law to “bring a civil action to enforce a subpena [again, don’t ask] of the Senate or a committee or subcommittee of the Senate . . . only when directed to do so by the adoption of a resolution by the Senate.” 2 U.S.C. §288b(b). Such a resolution is subject to filibuster and thus would require at least nine Republican senators to support it in order to authorize the suit.
There are some Republican senators who might be willing to support a subpoena to Gaetz from the current Democratic-controlled SJC, but it seems unlikely that there are nine of them. And because of that problem, the committee is less likely to issue a subpoena in the first place.
Of course, if the incoming Republican majority wants to get the information from Gaetz, it could simply demand it from him during the confirmation process. But the longer it puts off any confrontation with him, the less likely it is that it will have the appetite for it.